PART 1 OF 4
The Association of the Bar of the City of New York Committee on International Human Rights Committee on Military Affairs and Justice's ReportHuman Rights Standards Applicable to the United States' Interrogation of Detainees
April, 2004
Table of Contents• Executive Summary/Introduction
• I. THE CONVENTION AGAINST TORTURE
o A. CAT’s Definitions of – and Prohibitions against – Torture and Cruel, Inhuman or Degrading Treatment
o B. CAT’s Prohibition against Torture and CID Treatment as Interpreted by the U.N. Committee Against Torture
o C. U.S. Law Implementing CAT’s Prohibitions against Torture and Cruel, Inhuman or Degrading Treatment or Punishment
1. U.S. Understandings and Reservations in Ratifying CAT
2. The Implementation of CAT’s Prohibition against Torture in U.S. Legislation, Regulation and Case Law
(a) U.S. Immigration Law and Torture
(b) U.S. Extradition of Fugitives Who Face Threat of Torture
(c) U.S. Implementation of CAT’s Criminal Law Requirements
(d) U.S. Case Law Interpretations of Torture in Tort Claims
(e) Conclusion: CAT’s Prohibition against Torture as Implemented in U.S. Legislation and Regulation
3. CAT’s Prohibition against “Cruel, Inhuman or Degrading Treatment,” as Interpreted by United States Law
(a) Fifth and Fourteenth Amendment Standards
(b) Eighth Amendment Standards
o D. Enforcement of CAT under U.S. Law
1. 18 U.S.C. §§ 2340 – 2340B
2. Uniform Code of Military Justice
o E. Summary
• II. THE GENEVA CONVENTIONS
o A. Application of the Geneva Conventions to the Afghan Conflict Generally
o B. Geneva III
1. Relevant Legal Standards
2. The United States’ Position
3. Critiques of the United States’ Position
(a) Article 5 Presumes POW Status Until the Determination of Status by a Competent Tribunal
(b) The Taliban Detainees Were “Regular Armed Forces” and, therefore, Are Encompassed by Article 4(A) of Geneva III
(c) Policy Arguments Favoring Broad Grant of POW Status to Non-Civilian Detainees from the War in Afghanistan
o C. Geneva IV
o D. Summary
• III. OTHER INTERNATIONAL LEGAL STANDARDS
o A. The International Covenant on Civil and Political Rights
1. Relevant Legal Standards
2. Enforcement
(a) U.S. Courts
(b) The Human Rights Committee
o B. Organization of American States’ Instruments
1. Relevant Legal Standards
2. Enforcement
o C. Customary International Law and Jus Cogens
1. Relevant Legal Standards
2. Enforcement
• IV. SHOULD EXCEPTIONS BE MADE FOR THE “WAR ON TERROR”?: THE EXPERIENCE OF OTHER JURISDICTIONS
o A. Legal Challenges to Interrogation Practices in Northern Ireland and Israel
1. The Republic of Ireland v. The United Kingdom
2. Israeli Supreme Court Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods
o B. The Legal and Moral Implications of the “Ticking Bomb” Scenario
• THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS
• THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE
• APPENDIX A
o Letter 1: To President George W. Bush from Kenneth Roth (Human Rights Watch), dated 12/26/02
o Letter 2: To the Hon. George W. Bush from William Schulz (Amnesty Intl.), Kenneth Roth (Human Rights Watch), Gay McDougall (Intl. Human Rights Law Group), Louise Kantrow (Intl. League for Human Rights), Michael Posner (Lawyers Cmte. for Human Rights), Robin Phillips (Minn. Advocates for Human Rights), Len Rubenstein (Physicians for Human Rights), Todd Howland (RFK Memorial Center for Human Rights), dated 1/31/03
o Letter 3: To President George Bush from Ernest Duff, National Consortium of Torture Treatment Programs, dated 2/5/03
o Letter 4: To the Hon. Condoleezza Rice from Patrick Leahy (U.S. Senator), dated 6/2/04
o Letter 5: To Scott W. Muller (Genl. Counsel, CIA) from Miles F. Fischer (Chair, The Assoc. of the Bar of the City of N.Y.) and Scott Horton (Chair, Cmte. on Intl. Human Rights), dated 6/4/03
o Letter 6: To William J. Haynes, II (Genl. Counsel, DOD) from Patrick Leahy (U.S. Senator), dated 9/9/03
o Letter 7: To Kenneth Roth (Human Rights Watch) from William J. Haynes II (Genl. Counsel DOD), dated 4/2/03
o Letter 8: To Miles F. Fischer and Scott Horton (Assoc. of the Bar of the City of N.Y.) from Scott W. Muller (Genl. Counsel CIA) dated 6/23/03
o Letter 9: To Patrick J. Leahy (U.S. Senator) from William J. Haynes II (Genl. Counsel DOD), dated 6/25/03
EXECUTIVE SUMMARY/INTRODUCTIONThis Report is a joint effort of the Association of the Bar of the City of New York’s Committees on International Human Rights and Military Affairs and Justice, undertaken to consider allegations – reported in the press and by human rights and humanitarian organizations conducting their own investigations – that individuals detained by the United States at its military and intelligence facilities in connection with the initial War in Afghanistan and the subsequent ongoing conflict in Afghanistan, are being subjected to interrogation techniques that constitute torture or cruel, inhuman or degrading treatment. [1] We note at the outset, however, that although this project was initially motivated by allegations regarding the treatment of detainees from the War in Afghanistan, the international law and human rights standards discussed herein – with the exception of Geneva Convention protections applicable only to situations of international armed conflict – apply broadly and with equal force to the treatment of detainees captured in other situations, including detainees picked up in other countries in connection with the broader “War on Terror.” [2] In this Report, we will examine the international legal standards governing United States military and civil authorities in interrogating detainees and propose ways of assuring that those standards are enforced.
THE ALLEGED INTERROGATION PRACTICESThese allegations first surfaced in December 2002, when the U.S. military announced that it had begun a criminal investigation into the death of a 22 year-old Afghan farmer and part-time taxi driver who had died of “blunt force injuries to lower extremities complicating coronary artery disease” while in U.S. custody at Bagram Air Force Base in Afghanistan. [3] Since then, details about interrogation techniques allegedly employed at U.S. detention facilities – most of which are off-limits to outsiders and some of which are in undisclosed locations – have come from government officials speaking on the condition that they would not be identified and from the few prisoners who have been released. Some examples of “stress and duress” interrogation “techniques” reportedly being practiced by U.S. Department of Defense (“DOD”) and Central Intelligence Agency (“CIA”) personnel at U.S. detention facilities include: forcing detainees to stand or kneel for hours in black hoods or spray-painted goggles, 24-hour bombardment with lights, “false-flag” operations meant to deceive a captive about his whereabouts, withholding painkillers from wounded detainees, confining detainees in tiny rooms, binding in painful positions, subjecting detainees to loud noises, and sleep deprivation. [4] In addition, the U.S. is reportedly “rendering” suspects to the custody of foreign intelligence services in countries where the practice of torture and cruel, inhuman or degrading treatment during interrogation is well-documented. [5]
THE ADMINISTRATION'S RESPONSESThe Association and others have written to U.S. government officials to ask whether there is any factual basis for these allegations and whether steps are being taken to ensure that detainees are interrogated in accordance with U.S. law and international standards prohibiting torture and “cruel, inhuman or degrading” treatment falling short of torture (“CID”). [6]
In response to inquiries from Human Rights Watch, U.S. Department of Defense General Counsel William J. Haynes has stated that: “United States policy condemns and prohibits torture” and that, when “questioning enemy combatants, U.S. personnel are required to follow this policy and applicable laws prohibiting torture.” [7] CIA General Counsel Scott W. Muller, citing to the need to protect intelligence sources and methods, has responded to our inquiries by stating only that “in its various activities around the world the CIA remains subject to the requirements of U.S. law” and that allegations of unlawful behavior are reported by the CIA to the Department of Justice and are subject to investigation. [8]
In response to an inquiry made by U.S. Senator Patrick J. Leahy regarding U.S. policy, Haynes stated that U.S. policy entails “conducting interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), as ratified by the U.S. in 1994, and with the Federal anti-torture statute, 18 U.S.C. §§ 2340 - 2340A, which Congress enacted to fulfill U.S. obligations under the CAT.” [9] Haynes also stated that U.S. policy is “to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with” the U.S. obligation, pursuant to Article 16 of CAT, namely, “to prevent other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture” insofar as such treatment is “prohibited by the Fifth, Eighth, and/or Fourteenth Amendments.” [10] Haynes assured Senator Leahy “that credible allegations of illegal conduct by U.S. personnel will be investigated and, as appropriate, reported to proper authorities.” [11] Furthermore, Haynes stated that the U.S. does not “expel, return (‘refouler’) or extradite individuals to other countries where the U.S. believes it is ‘more likely than not’ that they will be tortured,” that “United States policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country,” and that “the United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored.” [12]
Both Haynes and Muller have declined, however, to give details concerning the specific interrogation methods used by U.S. personnel at U.S. military and CIA detention facilities.
LEGAL STANDARDS PROHIBITING TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENTAlthough we are not in a position to investigate the factual basis for the allegations of torture and cruel, inhuman or degrading interrogation practices at U.S. detention facilities that have been made, we can describe the legal principles which should guide our military and intelligence personnel in their conduct. Accordingly, in this Report we examine the international and U.S. law standards against which the interrogation practices used on detainees should be assessed. We also address the question of whether there are any circumstances posed by the post-September 11 world in which abrogation of our country’s obligations to prevent and punish torture and cruel, inhuman or degrading treatment should be permitted in the interrogation of terrorist suspects.
The Convention Against Torture. First and foremost, the U.S. obligation to prohibit and prevent the torture and cruel, inhuman or degrading treatment of detainees in its custody is set forth in the Convention Against Torture And Other Cruel, Inhuman, or Degrading Treatment (“CAT”), to which the U.S. is a party. [13] When the U.S. ratified CAT in 1994, it did so subject to a reservation providing that the U.S. would prevent “cruel, inhuman or degrading treatment” insofar as such treatment is prohibited under the Fifth, Eighth, and/or Fourteenth Amendments. [14] Thus, the U.S. is obligated to prevent not only torture, but also conduct considered cruel, inhuman or degrading under international law if such conduct is also prohibited by the Fifth, Eighth and Fourteenth Amendments. In interpreting U.S. obligations, we look to the U.N. Committee Against Torture’s interpretations of CAT as well as U.S. case law decided in the immigration and asylum law context, under the Alien Tort Claims and Torture Victim Protection Acts and concerning the treatment of detainees and prisoners under the Fifth, Eighth and/or Fourteenth Amendments. We also examine the procedural mechanisms available under U.S. law to punish violations of CAT – including prosecution under federal criminal law (18 U.S.C. §§ 2340 - 2340A) and the Uniform Code of Military Justice (“UCMJ”).
Other International Legal Standards which Bind the United States While there is a dearth of U.S. case law applying CAT’s prohibition against torture and cruel, inhuman or degrading treatment in the interrogation context, there is a wealth of international law sources which offer guidance in interpreting CAT. Some of these international legal standards are, without question, binding on the U.S., such as: the International Covenant on Civil and Political Rights (the “ICCPR”), [15] the law of jus cogens and customary international law. Another international legal instrument which has been ratified by the U.S. and is relevant to the interrogation practices being examined by this Report is the Inter-American Declaration on the Rights and Duties of Man. [16] Other sources, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, [17] also provide guidance.
The applicability of the Geneva Conventions to the detainees from the War in Afghanistan, however, presents a more contentious issue. The Administration’s official position is that the Geneva Conventions do not apply to Al Qaeda detainees, and that neither the Taliban nor Al Qaeda detainees are entitled to prisoner of war (“POW”) status thereunder. Nevertheless, the Administration has stated that it is treating such individuals “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949,” and that the detainees “will not be subjected to physical or mental abuse or cruel treatment.” [18] The Administration has never explained how it determines what interrogation techniques are “appropriate” or “consistent with military necessity,” or how it squares that determination with U.S. obligations under human rights and customary international law. For POW and civilian detainees who meet the relevant criteria of Geneva Convention (III) Relative to the Treatment of Prisoners of War (“Geneva III”) and Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”), respectively, all coercion is prohibited. [19] Moreover, any detainee whose POW status is in doubt is entitled to a hearing and determination by a competent tribunal and, pending such determination, any such detainee must be treated as a POW. Concern for the safety of U.S. forces weighs in favor of extending POW status liberally. At a minimum, all detainees – regardless of POW or civilian status – are entitled to humane treatment and prompt hearings under human rights and customary international law, including the protections of Article 3 common to all four Geneva Conventions (“Common Article 3”) and Article 75 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and Related to the Protection of Victims of International Armed Conflicts (“Additional Protocol I”). [20] We urge the U.S. to promptly establish proper screening procedures for all detainees, whether or not they served with forces that met the specific criteria of Geneva III.
Legal Standards which the United States Should Look to for GuidanceOther relevant sources of law, such as the seminal 1999 Israeli Supreme Court decision on interrogation methods employed by the Israeli General Security Service, Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods, [21] and decisions of the European Court of Human Rights, although not legally binding on the U.S., also offer useful guidance in our interpretation of CAT. These foreign decisions indicate that the “War on Terror” is not unprecedented. As the Israeli and Northern Ireland experiences demonstrate, the U.S. is not the only country to have faced terrorism within its borders, despite the unique tragedy of September 11 and the potential threat of weapons of mass destruction that could expand the loss of life by orders of magnitude. We can and should learn from the experience of other countries whose courts have grappled with the need to permit effective interrogation while at the same time upholding the standards of human rights and the rule of law.
Standards in the Time of Terror There is an inherent tension between the need to obtain potentially life-saving information through interrogation of terrorist suspects and the legal requirement of upholding the standards set forth in CAT. We grappled with the question of whether there are any circumstances under which torture or cruel, inhuman or degrading treatment would be permissible in a post-September 11 world. While we acknowledge the real danger posed to the United States by Al Qaeda and other terrorist organizations, we concluded that there are no such exceptions to CAT’s absolute prohibition of torture.
Condoning torture under any circumstances erodes one of the most basic principles of international law and human rights and contradicts our values as a democratic state. Permitting the abuse of detainees in U.S. custody, perhaps under so-called “torture warrants,” not only harms the detainees themselves; it compromises the moral framework of our interrogators and damages our society as a whole. If U.S. personnel are allowed to engage in brutal interrogation methods which denigrate the dignity and humanity of detainees, we sanction conduct which we as a nation (along with the international community) has clearly determined is wrong and immoral. Accordingly, we unanimously condemn the torture of detainees under any circumstances. We note that U.S. constitutional jurisprudence on “cruel, inhuman or degrading” treatment, which has been made relevant to CAT by the U.S. reservation, is an extremely important source of guidance on this subject. On the other hand, much of this jurisprudence evolved in the context of domestic criminal justice administration, and how these precedents would be applied in a case arising out of the interrogation and detention covered by this Report is, in the absence of more definitive authority, a matter of some speculation.
RecommendationsWe applaud the statements in William Haynes’ June 25, 2003 letter to Senator Leahy affirming the policy of the U.S. regarding its commitment to CAT. To make that policy meaningful, we make the following recommendations:
1. Training and Education. All law enforcement personnel, civilian or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of anyone under any form of detention or imprisonment should be informed and educated regarding the prohibition against torture and cruel, inhuman or degrading treatment, as applied in practice. This requires, as provided in Article 11 of CAT, that the U.S. keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of such detainees. [22] Above all, commanders should not condone non-compliance nor permit an environment in which troops are encouraged to provide lip service to compliance but yet think that non-compliance is acceptable.
Given that CIA personnel are not generally subject to the UCMJ, possibly not even when accompanying the armed forces in the field, special procedures should be available to provide reasonable assurance that compliance with CAT is being taught and maintained by intelligence agencies. That assurance might best be provided by the applicable committees of the Congress exercising oversight responsibility in conjunction with the inspectors general of the applicable agencies.
2. Prompt Investigation of Violations. As required by Article 12 of CAT, the U.S. must ensure that allegations of abusive conduct are taken seriously and are fully and impartially investigated. [23] Thus, any individual who alleges that he or she has been subjected to torture must be provided with a meaningful opportunity to complain to, and to have his/her case promptly and impartially examined by, competent authorities. Steps must be taken to ensure that the complainant and witnesses are protected against all ill-treatment and intimidation.
3. Expand the Scope and Reach of Section 2340. Consistent with its obligation under Article 4 of CAT to ensure that all acts of torture are offenses under its criminal law [24] and since 18 U.S.C. § 2340 does not, by its terms, apply to acts constituting torture committed in extraterritorial detention centers under U.S. jurisdiction – the U.S. must expand the geographic reach of Section 2340 so that the prescriptions of CAT are applicable at all U.S. detention centers.
4. Fully Utilize the UCMJ. The U.S. must more fully utilize the procedures and protections available under the UCMJ to prosecute all violations of CAT by the armed forces or others subject to the UCMJ.
5. Independent Investigation of Human Rights Compliance in Other Countries. As provided by Article 3 of CAT, the U.S. must not “render” detainees to other countries where there are substantial grounds for belief that the detainees would be in danger of being subjected to torture. [25] In determining whether there are “substantial grounds for belief” that a detainee would be in danger of torture if rendered to another country, U.S. authorities must take into account all the relevant considerations concerning that country, including independently investigating whether there exists a consistent pattern of gross, flagrant or mass violations of human rights in the country. [26]
6. Grant POW Status to Detainees Whose Status is in Doubt and Possibly as a Matter of Policy. The U.S. should adhere to Geneva III’s requirement that any detainee whose POW status is in “doubt” is entitled to POW status – and, therefore, cannot be subjected to coercive treatment – until a “competent tribunal,” which must be convened promptly, determines otherwise. [27] We urge the U.S. to consider the policy grounds for extending POW treatment to regular force combatants, whether or not legally required to do so, as it has done in prior conflicts.
7. Prompt Screening and Hearings for All Detainees. In keeping with the spirit of the Geneva Conventions and human rights law, we urge the U.S. to provide proper screening procedures and hearings to all detainees. [28]
We now turn to a more detailed discussion of the international standards applicable to interrogation procedures.
THE CONVENTION AGAINST TORTURE The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) is the primary source of international law relevant to the treatment of detainees. [29] CAT has been ratified by the U.S., and its prohibitions against torture and cruel, inhuman or degrading treatment or punishment have been implemented in our domestic law.
Specifically, U.S. law implements CAT’s prohibition against torture in the immigration and asylum contexts, under the Alien Tort Claims and Torture Victim Protection Acts, by criminal statute and under the UCMJ. Under CAT, the U.S. is also obligated to prevent “cruel, inhuman or degrading treatment or punishment” as defined in international law; however, by express reservation, the U.S. interprets this obligation in keeping with standards of treatment required by the Fifth, Eighth and Fourteenth Amendments. Accordingly, under CAT, American military and intelligence personnel involved in the interrogation of detainees may not torture those detainees, nor may they subject them to cruel, inhuman or degrading treatment that is, or would be, forbidden under the Fifth, Eighth and/or Fourteenth Amendments.
CAT'S DEFINITIONS OF -- AND PROHIBITIONS AGAINST -- TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENTCAT defines and prohibits torture, as defined, and cruel, inhuman or degrading treatment or punishment in general terms. In addition, it also sets out steps ratifying countries must take to prevent, investigate, and criminalize acts of torture; [30] prohibits the extradition or other rendering (also known as “refoulement”) of a person to a country that would likely subject such person to torture; [31] creates a Committee to oversee the implementation of CAT by ratifying countries; and sets forth procedures for inquiries, individual communications, and inter-State complaints.
CAT’s preamble acknowledges that torture and other cruel, inhuman or degrading treatment or punishment are already prohibited under Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR. Thus, rather than simply mirroring the prohibitions from these instruments, Article 1 of CAT provides additional guidance to states parties in preventing and punishing torture by setting forth an explicit definition of torture:
…torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
This definition makes it clear that the result of torture need not be physical pain or suffering, but can also be mental. In addition, torture is defined to include such conduct undertaken for the purpose of obtaining information. Finally, the prohibition is not directed at private citizens, acting independently of government; it applies rather to acts committed by government officials and agents, or persons acting with official consent or acquiescence.
CAT’s prohibition of torture is absolute. An order from a superior officer or a public authority may not be invoked as a justification of torture. Specifically, Article 2(2) provides: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Although CAT does not provide a definition of CID punishment or treatment, Article 16 requires ratifying countries to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture….” This language suggests that cruel, inhuman or degrading treatment is on a continuum with torture.
CAT requires each signatory state to prevent the commission of the prohibited acts within any territory under the state’s jurisdiction. Specifically, each ratifying country must ensure that any official who may be involved in the interrogation of anyone under any form of detention or imprisonment is informed of and educated about the prohibitions against torture and cruel, inhuman or degrading treatment. CAT also requires each ratifying country to ensure that allegations of torture and CID treatment are fully and impartially investigated. See CAT Articles 12 and 16(1).
CAT'S PROHIBITION AGAINST TORTURE AND CID TREATMENT AS INTERPRETED BY THE U.N. COMMITTEE AGAINST TORTUREThe U.N. Committee Against Torture, created by CAT, is charged with monitoring implementation of the treaty by ratifying countries through the determination of individual complaints, considering country reports submitted under CAT, and resolving inter-State disputes. Given the importance of international standards in interpreting U.S. domestic law [32] as well as the recent Lawrence v. Texas decision, in which the U.S. Supreme Court expressly looked to foreign and international law for guidance, [33] U.N. Committee decisions are relevant to the assessment of whether the actions of U.S. personnel involved in the interrogation of detainees constitute torture or cruel, inhuman or degrading treatment.
The U.N. Committee has concluded that the following acts [34] constitute torture under CAT:
• daily beatings and detaining someone in a small, uncomfortable space for two weeks; [35]
• forcing someone to sleep on the floor of a cell while handcuffed following interrogation; [36]
• in severe cases, sleep deprivation; [37] and
• the threat of torture. [38]
Furthermore, the U.N. Committee has recommended that the use of a blindfold during questioning be expressly prohibited. [39] More generally, the U.N. Committee has expressed concern that States have defined torture too narrowly, covering only “systematic blows or other violent acts.” [40] The U.N. Committee has also expressed concern whether the penal law of one State was too narrow in defining torture because it failed to prohibit “certain aspects of torture, such as psychological pressure, threats and intimidation.” [41]
The U.N. Committee has found that the following acts amount to cruel, inhuman or degrading treatment or punishment under CAT:
• depriving someone of food and/or water; [42]
• in some cases, binding someone in a restraint chair; [43]
• the use by prison authorities of instruments of physical restraint that may cause unnecessary pain and humiliation;[44] and
• long periods of detention (two weeks or more) in detention cells that are sub-standard (this conduct may amount to torture if the period of detention is extremely long).[45]
The U.N. Committee has found that the following acts may amount to torture when used in combination with other forms of CID:
• being restrained in very painful conditions;
• being hooded;
• the sounding of loud music for prolonged periods;
• sleep deprivation for prolonged periods;
• violent shaking; and
• using cold air to chill. [46]
In sum, the U.N. Committee Against Torture has indicated that the classification of treatment as CID or torture is often a matter of severity, intensity, and the totality of the circumstances. Combining several forms of cruel, inhuman or degrading treatment will frequently amount to torture, and ratifying countries are required under CAT to refrain from all such practices, whether they reach the level of severity to be considered torture or not. Thus, according to U.N. Committee jurisprudence, alleged interrogation practices such as forcing detainees to stand or kneel for hours in black hoods or spray-painted goggles, 24-hour bombardment with lights, binding detainees in painful positions, withholding painkillers from wounded detainees, and subjecting detainees to loud noises and sleep deprivation, at a minimum, constitute cruel, inhuman or degrading treatment and may, depending on the circumstances, rise to the level of torture. U.N. Committee decisions critical of blindfolding, psychological pressure and threats and intimidation strongly suggest that “false-flag” operations meant to deceive detainees about their whereabouts and “stress and duress” interrogation techniques are also prohibited.
U.S. LAW IMPLEMENTING CAT'S PROHIBITIONS AGAINST TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENTThe Senate adopted a resolution of advice and consent to U.S. ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990. [47] The U.S. ratified CAT in October 1994, and CAT entered into force with respect to the United States on 20 November 1994. [48] The implementation in U.S. immigration, extradition, criminal and civil tort law of CAT’s prohibition against torture, as well as the express application of U.S. constitutional standards to CAT’s prohibition against CID treatment, indicates that many of the interrogation practices allegedly being used by the U.S. against detainees may be prohibited under international and U.S. law.
U.S. Understandings and Reservations in Ratifying CAT The United States conditioned its ratification of CAT upon certain understandings related to CAT’s definition of torture in Article 1. In one such understanding, the U.S. specified that mental pain or suffering within the meaning of “torture” 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; or (4) 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 the personality. [49] Another U.S. understanding pertains to defects in criminal procedure: non-compliance with applicable legal procedural standards (such as Miranda warnings) does not per se constitute “torture.” [50]
When ratifying CAT, the United States also took the following reservation: “the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.” [51]
The Implementation of CAT’s Prohibition against Torture in U.S. Legislation, Regulation and Case Law CAT’s prohibition of official acts amounting to torture has been implemented in the United States through legislation, regulations and case law pertaining to, inter alia, (1) immigration, (2) claims of torture in removal and extradition proceedings, (3) criminal sanctions for torture, and (4) tort claims alleging torture. Through the application of these implementing laws and regulations, U.S. courts have interpreted CAT’s substantive provisions in a variety of contexts. [52]
U.S. Immigration Law and Torture As previously noted, all countries that ratify CAT are obligated to ensure that detainees are not deported or extradited to countries where they are likely to be tortured. In 1998, the United States enacted the Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, Div. G, 112 Stat. 2681, 2681-822 (Oct. 21, 1998) (the “FARR Act”), implementing this obligation. In 1999, the Immigration and Naturalization Service (“INS”) promulgated regulations effectuating the FARR Act in the immigration and asylum context, providing aliens in exclusion, deportation or removal proceedings with grounds to seek withholding of removal based on CAT. See 8 C.F.R. § 208.18 (2004), et seq. These regulations incorporate CAT’s definition of torture verbatim, with the following qualification: “Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.” See 8 C.F.R. § 208.18(a)(2) (2004). These regulations further define mental pain or suffering consistently with the U.S. understandings to CAT, and exclude from the definition of torture acts which result in “unanticipated or unintended severity of pain and suffering.” See 8 C.F.R. § 208.18(a)(5) (2004).
A number of federal court cases and Board of Immigration Appeals (“BIA”) decisions address torture claims in the immigration context. The BIA has held that the following abuses of detainees and prisoners, for example, amount to torture: “‘suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and…severe and repeated beatings with cables or other instruments on the back and on the soles of the feet,’…beatings about the ears, resulting in partial or complete deafness, and punching in the eyes, leading to partial or complete blindness.” Matter of G-A-, 23 I & N Dec. 366, 370 (BIA 2002) (internal citations omitted). [53] Furthermore, persons seeking asylum or withholding of removal have successfully challenged deportation under Sections 208 and 241(b)(3) of the Immigration & Nationality Act (“INA”) when they have a well-founded fear of future persecution. Although “persecution” is not defined in the INA, it is understood to encompass treatment falling short of torture.
U.S. Extradition of Fugitives Who Face Threat of Torture In the extradition context, torture claims are governed by regulations enacted by the Department of State under the FARR Act. Under these regulations, individuals sought for extradition may present a claim that they are likely to be tortured if surrendered to the requesting state. These claims are considered by the U.S. Secretary of State, who is responsible for implementing CAT’s obligation not to extradite an individual to a State where he or she is in danger of being subject to torture. Specifically, section 95 of 22 C.F.R. (2004) provides, in relevant part, that the Secretary of State must consider whether a person facing extradition from the U.S. “is more likely than not” to be tortured in the State requesting extradition, and that appropriate policy and legal offices must review and analyze the information relevant to the torture allegation. The extradition regulations, and the decisions interpreting them, [54] demonstrate that U.S. administrative bodies and courts view CAT’s prohibition against extradition to torture as binding on the U.S. even when the extraditable individual is accused of wrongdoing.
U.S. Implementation of CAT’s Criminal Law Requirements 18 U.S.C. §§ 2340 and 2340A were enacted to fulfill CAT’s requirement that each ratifying country criminalize all acts of torture, including attempts to commit torture and complicity in torture. [55] Section 2340 defines torture as:
an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. . .
“Severe mental pain or suffering” is also defined, using the same wording as the U.S. understandings concerning Article 1 of CAT set forth in Section I(C)(1) above. See 18 U.S.C. § 2340. As discussed further below, however, this statute applies only to U.S. nationals (or others present in the U.S.) who have committed or attempted or conspired to commit acts of torture “outside of the United States.” [56]
U.S. Case Law Interpretations of Torture in Tort ClaimsTwo U.S. statutes provide for civil suits against those who commit acts of torture abroad. The Alien Tort Claims Act of 1789 (“ATCA”), 28 U.S.C. § 1350, states that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350, provides that:
[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation – (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. [57]
The TVPA extends a civil remedy to U.S. citizen torture victims, while the ATCA provides a remedy for aliens only.
U.S. courts applying the ATCA and TVPA have found that the following acts constitute torture: subjecting detainees to interrogation sessions lasting 14 hours (Xuncax v. Gramajo, 886 F. Supp. 162, 170 (D. Mass 1995)); beating with hands (Tachiona v. Mugabe, 234 F. Supp. 2d 401, 420-423 (S.D.N.Y. 2002); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1191, 1196 (S.D.N.Y. 1996); Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir. 1996)); threatening with death (Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir. 1996)); and using techniques to exacerbate pain or injury (Abebe-Jira v. Negewo, 72 F.3d 844, 845-6 (11th Cir. 1996)).
Conclusion: CAT’s Prohibition against Torture as Implemented in U.S. Legislation and Regulation U.S. domestic laws prohibiting, or providing a cause of action to victims of, torture are consistent with the standards of CAT. However, these U.S. statutes and regulations are limited to specific contexts – such as, refugee claims, extradition of foreign fugitives, criminalizing acts of torture committed outside the U.S. by U.S. officials, and providing compensation to victims of torture committed by aliens. Accordingly, the U.S. has yet to fulfill its obligation, under CAT, to enact laws which adequately prevent U.S. officials and individuals acting with their consent from subjecting any detainee to torture and which punish such conduct wherever it occurs.
CAT’s Prohibition against “Cruel, Inhuman or Degrading Treatment,” as Interpreted by United States Law. As previously noted, the U.S.’s reservation to Article 16 of CAT provides that the United States considers itself bound by Article 16 only insofar as CID treatment is understood to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments.”
The Senate Foreign Relations Committee report states that this reservation is the outgrowth of concern that “degrading treatment or punishment . . . has been interpreted as potentially including treatment that would probably not be prohibited by the U.S. Constitution” and cites, as an example of what the United States would not find “degrading” under the U.S. Constitution, a holding by the European Commission of Human Rights that the refusal of authorities to give formal recognition to an individual’s change of sex might constitute degrading treatment. [58] This explanation suggests that the reservation was intended to prevent the importation of foreign social values or mores into U.S. law, rather than any view that international norms of CID treatment are out of step with U.S. law.
In assessing interrogation conduct under Article 16 of CAT, the U.S. should look to international standards defining cruel, inhuman or degrading treatment. If such conduct is prohibited under international law, the U.S. is bound to prevent such conduct unless it would not be prohibited under the Fifth, Eighth and Fourteenth Amendments. The Committees take note that much of the case law under the three Amendments arises in the context of domestic criminal justice proceedings. How this jurisprudence would be applied in a case relating to the detention and interrogation of foreign combatants is not completely clear. For instance, on the one hand some of the special protections provided in the American criminal justice system with respect to interrogations would be of doubtful applicability, particularly considering an asserted state interest in national security. On the other, the absence of a legitimate state interest in punishment might mandate a higher standard of treatment of detainees generally.
Fifth and Fourteenth Amendment Standards The Constitution’s guarantee of due process forbids compulsion to testify, at least for domestic law enforcement purposes, by fear of hurt, torture or exhaustion. See Adamson v. California, 332 U.S. 46 (1947) (armed Texas Rangers on several successive nights took defendant from county jail into the woods, whipped him, asked him each time about a confession, interrogated him from approximately 11 p.m. to 3 a.m. and warned him not to speak to anyone about the nightly trips); Brown v. Mississippi, 297 U.S. 278 (1936) (confessions obtained by mock executions and whippings); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (defendant was taken into custody by police officers and for 36 hours thereafter was held incommunicado, without sleep or rest, and interrogated without respite by relays of officers, experienced investigators, and highly trained lawyers); see also Ashcraft v. Tennessee, 327 U.S. 274 (1946). However, the presence of unlawful police coercion motivated by “immediate necessity to find the victim and save his life” to extract a confession has been found by one appeals court to be insufficient to exclude a subsequent confession. [59]
Due process also prohibits actions taken under color of law that are “so brutal and offensive to human dignity” that they “shock the conscience.” [60] The Supreme Court has given content to the phrase “shocks the conscience” by reference to the spectrum of fault standards in tort law. Intentional infliction of injury unjustifiable by any government interest is the sort of official action which could rise to the conscience-shocking level. [61] All applicable sources of law are consistent in prohibiting such extreme conduct.
Eighth Amendment Standards The Eighth Amendment prohibits “cruel and unusual punishments.” [62] In the context of law enforcement, U.S. courts have long held that the norms articulated under the Cruel and Unusual Punishment Clause establish a minimum level of protection, applicable even to pretrial detainees. [63]
While the Supreme Court initially interpreted the Eighth Amendment as prohibiting only barbaric or torturous punishments, this interpretation was early broadened in two respects: (i) to prevent disproportionate punishments (Weems v. United States, 217 U.S. 349 (1910)) and (ii) to address non-physical forms of cruel and unusual punishment (e.g., Trop v. Dulles, 356 U.S. 86 (1958) (in case involving denationalization as a punishment for desertion from the United States Army, the Court noted that “evolving standards of decency that mark the progress of a maturing society” should inform interpretation of the Eighth Amendment)). In 1947, the Supreme Court recognized that wanton or unnecessary infliction of pain also constitutes cruel and unusual punishment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947).
In cases brought by prisoners under the Eighth Amendment alleging that excessive force was used against them by government officials, courts consider both the objective component (whether the wrongdoing was “harmful enough” to implicate the Eighth Amendment) and the subjective component (whether the officials acted with a sufficiently culpable state of mind) of the challenged conduct. Hudson v. McMillian, 503 U.S. 1, 8 (1992). In order to establish that the objective component of an Eighth Amendment violation is satisfied, a prisoner need not prove he has sustained significant injury. However, the extent of injury suffered is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” [64] The subjective component involves, in the context of force used by prison officials, “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.” [65]
ENFORCEMENT OF CAT UNDER U.S. LAW
18 U.S.C. §§ 2340 – 2340B As stated above, the United States’ attempt to comply with its obligation under CAT to criminalize torture is codified in 18 U.S.C. § 2340A. Section 2340A criminalizes conduct by a U.S. national or a foreign national present in the U.S. who, acting under color of law, commits or attempts to commit torture outside the United States. The statute is exclusively criminal and may not be construed as creating any right enforceable in a civil proceeding. See 18 U.S.C. § 2340B. Section 2340A generally applies to acts committed by U.S. nationals overseas (everywhere except “all areas under the jurisdiction of the United States, including any of the places described in sections 5 and 7 of this title and Section 46501(2) of Title 49.”) When the Section was enacted the reach of the cross-referenced provisions, notably 18 U.S.C. § 7, was uncertain. [66] However, Section 7 was broadened in the USA PATRIOT Act to clarify jurisdiction over crimes committed against U.S. citizens on U.S. property abroad by extending U.S. criminal jurisdiction over certain crimes committed at its foreign diplomatic, military and other facilities, and by cross-reference excluded those places from the reach of Section 2340A. The resulting drastic limitation of jurisdiction under 18 U.S.C. § 2340A appears unintended. We recommend that Congress amend Section 2340A to assure that it applies to U.S. government premises abroad without prejudice to the expansion of U.S. criminal jurisdiction under other statutes.
The U.S. did not enact a specific criminal statute outlawing torture within the United States, out of deference to federal-state relations and because it determined that existing federal and state criminal law was sufficient to cover any domestic act that would qualify as torture under CAT. [67] It is submitted that the inapplicability of state law to U.S. facilities abroad and the lack of other federal criminal law comparable to Section 2340A leaves a serious vacuum in carrying out the obligations of the U.S. under CAT.
Unfortunately the U.S. has never enforced 18 U.S.C. § 2340A, and has thereby fallen far short of its obligations under international law and its professed ideals. The United States has failed to utilize 18 U.S.C. § 2340A to prosecute either U.S. agents suspected of committing torture outside the jurisdiction of the U.S. or foreign torturers living within the United States. Indeed, Amnesty International reported in 2002 that in the eight years following the enactment of 18 U.S.C. § 2340 and § 2340A, not a single case had been brought under that section. [68]
Uniform Code of Military Justice The UCMJ may be used to prosecute in courts-martial certain acts of ill-treatment carried out, whether within the United States or overseas, by American military personnel and possibly certain civilians accompanying such personnel. This federal statute is essentially a complete set of criminal laws that includes both crimes that are normally part of a criminal code as well as uniquely military and wartime offenses.
As a jurisdictional matter, the UCMJ applies worldwide (10 U.S.C. § 805), and persons subject to the UCMJ include any U.S. service member (10 U.S.C. § 802) as well as certain civilians “[i]n time of war … serving with or accompanying an armed force in the field” (10 U.S.C. § 802(a)(10)) and POWs (10 U.S.C. § 802(a)(9)). [69] Because courts-martial have jurisdiction to try “any person who by the law of war is subject to trial by a military tribunal” for any offense against the laws of war (10 U.S.C. § 818), the UCMJ would seem to apply also to “unlawful combatants” deemed by the Administration not to qualify for POW status under Geneva III.
The broad statutory application of the UCMJ to civilians associated in various ways with the armed forces has been judicially limited in deference to the requirements of Article III, Section II, of the Constitution and the Fifth and Sixth Amendments protecting the right to trial by jury. As so limited, the UCMJ does not apply to civilians who have no military status in peacetime, even if they are accompanying United States forces overseas as employees or dependents. Although courts’ interpretations of the terms “serving”, “accompanying” and “in the field” suggest a broad application, the “time of war” requirement is construed narrowly when applied to civilians. [70] As recently as 1998, the Court of Appeals for the Armed Forces [71] analyzed the propriety of the application of the UCMJ to civilians and stated:
As a matter of constitutional law, the Supreme Court has held that Congress may not extend court-martial jurisdiction to cover civilians who have no military status in peacetime, even if they are accompanying United States forces overseas as employees or dependents.
Willenbring v. Neurauter, 48 M.J. 152, 157, 1998 CAAF LEXIS 43 (C.A.A.F. 1998). The line of cases in this area generally focuses on the application of the UCMJ to civilian contractors and civilian dependents of service members. See, e.g., Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972) (civilian engineer employed by U.S. Navy in Vietnam was not subject to UCMJ); Reid v. Covert, 354 U.S. 1 (1957) (no jurisdiction over civilian dependents of service members stationed overseas in peacetime for capital offenses). No cases directly address whether CIA operatives conducting para-military operations with the regular armed forces or interrogations within a military base are considered civilians for purposes of UCMJ application. In Reid v. Covert, the Supreme Court stated, “[e]ven if it were possible, we need not attempt here to precisely define the boundary between ‘civilians’ and members of the ‘land and naval Forces.’ We recognize that there might be circumstances where a person could be ‘in’ the armed services . . . even though he had not formally been inducted into the military or did not wear a uniform.” See 354 U.S. at 22. [72] In any event, where a CIA operative is a detached service member who has not been formally discharged from military service (as is often the case in practice), the UCMJ would generally apply to such person in time of war or peace.
The UCMJ provides the strongest substantive basis for potential prosecution of torture or CID treatment in federal criminal law, specifically outlawing cruel or unusual punishment, torture under 18 U.S.C. § 2340 and a variety of related offenses. Article 55 of the UCMJ provides that:
Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
10 U.S.C. § 855. [73] Article 55 is unique in its specific definition of “cruel or unusual punishment” as a standard of treatment. [74] While most military courts have followed the Supreme Court's analytical framework of protections under the Eighth Amendment as they pertain to cruel and unusual punishment, [75] several military courts have found that Article 55 provides greater protections than those given under the Eighth Amendment. [76] It is notable that Article 55 applies at least the equivalent of the protection afforded by the Eighth Amendment even if the victim is not otherwise entitled to constitutional rights (e.g., a non-citizen apprehended and detained outside the U.S. and arguably not entitled to such rights). [77]
Moreover, the UCMJ effectively provides a basis for the prosecution of military personnel in courts-martial for the offense of torture in violation of 18 U.S.C. § 2340. Article 134 of the UCMJ (10 U.S.C. § 934) provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the UCMJ: Clause 1 offenses involving disorders and neglect to the prejudice of good order and discipline; Clause 2 offenses involving conduct of a nature to bring discredit upon the armed forces; and Clause 3 offenses entailing non-capital crimes or offenses that violate Federal law.
In order to successfully charge an individual under Clauses 1 and 2 of this Article, the government must show: (i) that the accused did or failed to do certain acts; and (ii) that, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. [78] Under Clause 1, the acts must be directly prejudicial to good order and discipline, rather than remotely so. Under Clause 2, discredit is interpreted to mean “injure the reputation of,” and encompasses conduct that brings the service “into disrepute or which tends to lower it in public esteem.” [79] With respect to Clause 3 offenses, as a general rule, any offense created by Federal statute may be prosecuted as an Article 134 offense. United States v. Perkins, 47 C.M.R. 259 (Ct. of Mil. Rev. 1973). [80]
Thus, a service member whose conduct is alleged to violate 18 U.S.C. § 2340, the federal enactment of CAT, could be prosecuted under Article 134 of the UCMJ, as a Clause 3 violation. Moreover, multiple counts alleging Article 134 violations also could be brought in such a situation, as such conduct could be construed as prejudicial to good order and discipline and/or of a nature to bring discredit upon the armed forces. Perkins, 47 C.M.R. at 263-264.
Finally, criminal charges for torture or CID conduct could be brought under a variety of other provisions [81]including “cruelty.” [82] The last of these offenses is generally intended to be applied to mistreatment of U.S. service members by their superiors, but by its terms it is not so limited and has been applied to intentional mistreatment of detainees. [83] And in instances where specific orders are in place regarding the treatment of detainees, as is recommended in this Report, failure to obey such orders is punishable under 10 U.S.C. § 892. A number of service members in Iraq are or have been investigated or tried for assaulting detainees, under the assault provision of the UCMJ (Article 128), and in at least one case the alleged assault occurred in the context of an interrogation. [84]
The UCMJ is thus the substantively most extensive body of federal criminal law relating to the interrogation of detainees by U.S. military personnel and, in time of war, its reach could possibly extend to civilians such as CIA agents accompanying such personnel. It prohibits such persons from subjecting detainees to torture and “cruel or unusual punishment” within or without the United States and regardless of the applicability of constitutional rights.