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UN Committee Against Torture Grills US Delegation Over Record Complying with Treaty Ban

Tom Malinowski, Assistant Secretary of State for the Bureau of Democracy, Human Rights & Labor

A United States delegation came before the United Nations Committee Against Torture, as part of the committee’s periodic review of compliance with a treaty prohibiting torture. The delegation indicated publicly that, unlike under President George W. Bush, the government had decided the ban applies to the US Naval Station at Guantanamo Bay, Cuba. But the delegation still left unresolved the question of whether the US believes the torture ban absolutely prohibits and applies to US officials anywhere in the world.

Every four years signatories to the Convention Against Torture (CAT) are required to submit reports on how they are complying with the ban. The Committee reviews the country’s report and invites government officials from that country to attend a session to provide additional information. The session allows the Committee to put forward questions, which the government is able to respond to the following day.

It was the US’ turn to be questioned, but first officials sent to represent the government made opening statements. Importantly, they addressed the question of whether the government thought the Convention applied to territories outside of the US that are under the country’s control.

Mary E. McLeod, acting legal adviser for the State Department, stated, “We understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party.”

“More specifically, to “all places that the State Party controls as a governmental authority,’ we have determined that the United States currently exercises such control at the US Naval Station at Guantanamo Bay, Cuba, and with respect to US registered ships and aircraft.”

“We believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions,”declared Tom Malinowski, the Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor.

However, Alessio Bruni, an Italian expert serving on the Committee, requested that the US delegation confirm whether the US believes the Convention applies to US officials “abroad without geographic limitation.”

“I think—and I repeat—an absolute prohibition has no boundaries. If there’s geographic limitations, the United States cannot say for them the prohibition of torture is absolute. It stops at its borders and torture is fully authorized in the rest of the world,” Bruni added.

“While it’s welcome that all US personnel are prohibited from carrying out torture anywhere in the world and from engaging in ill treatment under their physical or effective control, the Committee would like a clarification as to whether the US considers all aspects of the Convention to be applicable to territories under their de jure or de facto control,” asked Jens Modvig, a Danish expert serving on the Committee.

Malinowski outlined reasons for why the US forbids torture and quoted George Orwell, who said “the object of torture is torture.” He then suggested, “For all these reasons, the United States actively works to combat torture around the world. Where we see it, we condemn it. We urge other governments to cease its use. We make efforts to sanction those responsible. We support civil society organizations that campaign against torture, and that treat its victims.

“It’s important to stress that we expect others to hold us to the same high standards to which we hold them. And we do not claim to be perfect,” Malinowski further stated. But there was no mention of the fact that the Obama administration worked to quash a Spanish investigation into senior Bush administration officials involved in torture or that it had withdrawn troops from Iraq in 2011 because the Iraqi government refused to grant soldiers immunity from prosecutions for crimes, such as torture.

Why Did the US Not Interview Any Torture Victims and Decline to Prosecute Anyone?

Deputy chairman Giorgi Tugushi, a Georgian former public defender, stated the Committee had received some information that torture victims were not interviewed in the course of the investigation by Assistant US Attorney John Durham into torture.

“The investigation process looked into 101 cases and decided not to prosecute anyone. So, maybe, you can provide more information” on this outcome.

During Bruni’s thirty-seven minutes of time where he put forward his questions for the US delegation, he asked when the publication of the Senate Select Committee on Intelligence’s report on CIA torture would be released. He wondered if the Obama administration now considers “enhanced interrogation techniques” to officially be torture methods prohibited under the Convention. He expressed concern over the reluctance of the government to pass legislation specifically banning torture.

“I would appreciate if the delegation could give an example of prosecution of public official violating this legal provision, which is contained in section 1003 of the Detainee Treatment Act,” Bruni requested.

He also wondered how the US could reconcile this part of the law with “the practice of force-feeding Guantanamo prisoners who are on hunger strike to protest against living conditions in detention”?

Bruni noted that a federal judge had ordered the disclosure of videos of Guantanamo prisoner Abu Wa’el Dhiab being force-fed and asked, “Is the government going to disclose those videotapes or is the government’s view that security consideration to extinguish the right to complain about torture and ill treatment and to obtain redress?”

Outlining the practice of extraordinary rendition to “apprehend and transfer extrajudicially persons suspected of terrorism from a country to another” where US officials were aware such individuals would be tortured during interrogation, he asked if any measure had been taken “to publicly condemn this practice.”

Any Place Where Detainees Are Not Registered Becomes a Secret Detention Facility

Bruni took particular issue with the fact that the US has chosen not to register detainees.

“According to the United States, the convention has no provision requiring the registration of detainees. Let me underline that Article 2, Paragraph 1, refers to the obligation of each state party to take effective measures to prevent torture. This Committee considered that registration of a detainee is a first step to prevent torture since his or her identity and location are a sort of deterrent against any form of ill treatment, which needs secrecy to be carried out with total impunity.”

Bruni asserted that the US contradicts its claim of not operating any secret detention facility by not registering detainees.

“Any place where a person is deprived by his or her person’s liberty regardless of whether it is a legal or known place of detention becomes a secret place of detention if the person is arrested, is not properly registered there as a detainee,” he argued. “And in this connection I would like to know which are the regulations concerning the detention facility used by the CIA to hold people on a short-term or transitory basis? Are these detainees registered there?”

Bruni went on to explicitly ask if the CIA still had secret detention sites and if any of them were possibly on ships.

What About the Practice of “Field Expediency Separation” Known to Create Psychotic Symptoms in Prisoners?

Additionally, Modvig raised serious concerns about a known practice in the US Army Field Manual called “field expedient separation,” which has been used to “prolong the shock of capture by utilizing goggles or blindfolds and earmuffs to generate a perception of separation.” This “separation” can be imposed for up to 12 hours or longer, if a staff judge advocate approves.

“Deprivation of visual and [auditory] stimuli creates psychotic symptoms with most people after as little 25 minutes deprivation,” Modvig stated. “The described procedure for field expediency separation for many hours raises concerns whether this practice is in accord with the Convention. Please comment on this and provide information about number of times the field expedient separation were used during the reporting period and how many of these cases represented an extension of the field maximum.”

He asked if the Army Field Manual applied to the CIA, restricting the interrogation techniques they were allowed to use.

Modvig requested that the US delegation address “medical ethics” in relation to the hunger strikes at Guantanamo, which he said were a “sign of desperate objection” to treatment. The guidelines for medical management, which allow for the use of shackling, placing a mask on a prisoner, using a chair restraint system, and the insertion of a feeding tube into a prisoner while the guard holds his head each raise concerns of torture.

Why is the US Silencing Victims of Torture?

“As for victims of torture at the hands of the US,” Modvig explained, “The state party informs that various avenues exist for obtaining redress, including rehabilitation for acts of torture, however, lawsuits by persons alleging torture while in US custody are hindered by claims of immunity for government officials or state secrecy laws.”

“How many victims of torture formerly detained in Guantanamo have received judicial remedy for their treatment? As for their protective order, why [are] high-value detainees who are victims of torture prevented from seeking remedy because of classification of the information surrounding their treatment?

“Could the state party please explain why victims of torture are silenced this way, prevented from seeking remedy with reference to state security even including remedies abroad?” Modvig asked.

The Committee Asks About Killings by Police—And, Specifically, Prosecutions of Chicago Police

There were several questions from the Committee on law enforcement and prisons in the United States. Modvig brought up Ferguson, Missouri, and whether any steps were being taken to review the distribution of military equipment to the local police forces. He also said, “We understand that police review boards are elected by city governments, and those are not properly independent.” What is being done to prevent “excessive use of force” by police?

The Committee called out the Chicago Police Department and highlighted former commander Jon Burge, who was involved in torturing criminal suspects from 1972 to 1991. Modvig asked for an update on cases involving other Chicago police officers and what was being done to provide redress for victims.

Modvig requested information on prosecutions of prison officials accused of sexual abuse of inmates. He expressed concern about the number of minors imprisoned in adult jails and also the number of minors subjected to sexual violence. The issue of sentencing more than 3,000 individuals to life without parole in prison for nonviolent offenses and in some cases minors was raised as well.

Tugushi surprisingly asked what steps the US had taken to “strengthen protections against racial and ethnic profiling in the context of immigration and border enforcement” and the US’s broad claims of authority to conduct “warrantless searches” in the 100-mile zone of US borders.

Finally, the Committee requested comments on the rules and regulations that apply to the use of solitary confinement that is 22-24 hours a day in the same room alone. “What are the legal safeguards including appeals that apply to detainees and prisoners subjected to solitary confinement? Which time limits exist? Which measures of socially meaningful activities? And what are the rules for confining minors and persons with mental health disorders?”

He also wanted to know how many prisoners in solitary confinement had attempted suicide or self-harm in the reporting period.

Photo is from the US Mission to the UN in Geneva and therefore in the public domain.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."