Enduring Abuse: Torture and Cruel Treatment by the United States at Home and Abroad - Executive Summary

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Introduction
A. Reservations and Understandings of the United States to the Convention Against Torture
B. Deliberate Circumvention of Human Rights Law in the "Global War on Terrorism" (Articles 1, 2, 16)
C. Legal Status of Persons Captured by United States' Forces in the "Global War on Terrorism"
D. Torture and Abuse in the "Global War on Terrorism" (Articles 1, 16)
E. Torture and Abuse in the United States (Articles 1, 16)
F. Inadequate Review of Interrogation Rules (Article 11)
G. Unlawful Renditions (Articles 1, 3, 16)
H. Failure to Conduct Prompt and Impartial Investigations (Article 12)
I. Limitations on the Rights of Redress and Remedy (Articles 13, 14)
J. Admission of Coerced Testimony (Article 15)
K. Failure to Make Torture a Distinct Crime (Articles 4, 5)
L. Failure to Adequately Educate and Train Government Officials (Article 10)
Recommendations to the United States

The United States has failed to comply with its obligations under the Convention Against Torture at home and abroad. To justify torture and abuse in the "global war on terrorism," the government narrowly defined torture and argued that the prohibition against cruel, inhuman or degrading treatment does not apply outside the United States. Its selective interpretation of the Convention justified the development of interrogation techniques that violated the treaty, created a climate of confusion among U.S. soldiers, and led to widespread torture and abuse of detainees in Guantánamo Bay, Iraq and Afghanistan.

Evidence from a range of sources, including over 100,000 government documents produced to the ACLU through Freedom of Information Act ("FOIA") litigation, show a systemic pattern of torture and abuse of detainees in U.S. custody. This abuse was the direct result of policies promulgated from high-level civilian and military leaders and the failure of these leaders to prevent torture and other cruel, inhuman or degrading treatment by subordinates. Detainees have been beaten; forced into painful stress positions; threatened with death; sexually humiliated; subjected to racial and religious insults; stripped naked; hooded and blindfolded; exposed to extreme heat and cold; denied food and water; deprived of sleep; isolated for prolonged periods; subjected to mock drownings; and intimidated by dogs.

Despite the widespread and systemic nature of the torture and abuse, the United States has refused to authorize any independent investigation into the abuses. No high-level official involved in developing or implementing the policies that led to torture and abuse has been charged with any crime related to the abuses. The government continues to assert that the abuse was simply the actions of a few rogue soldiers.

Also in violation of the Convention, the U.S. continues to engage in unlawful renditions in which the CIA kidnaps individuals and transfers them to countries known for their routine use of torture, such as Egypt, Jordan, Saudi Arabia, and Syria. Other detainees have been "disappeared" to secret detention facilities overseas.

U.S. violations of the Convention Against Torture are not limited to actions by military personnel overseas in the "war on terror," but in fact are far too ubiquitous at home. When Hurricane Katrina hit New Orleans in August 2005, over a thousand prisoners were abandoned after rising water flooded the prison and were left in their cells for days without food, water, or ventilation. Prisoners and detainees inside the United States are subjected to conditions and brutal practices that are chillingly similar to those experienced by detainees abroad—prolonged solitary confinement, extreme temperatures, intimidation by dogs, painful restraints and electro-stun devices. Indeed, these similarities are not surprising, as some of the officials and soldiers who committed abuse abroad previously worked in prisons inside the United States.

Serious limitations remain on the rights of redress and remedy for victims of torture and abuse committed by government officials inside and outside of the United States. The rights of prisoners inside the United States to obtain redress are severely limited by the Prison Litigation Reform Act. And the U.S. government continues to argue that victims of abuse outside the United States have virtually no remedy for torture and abuse in United States’ courts under domestic or international law.

The United States’ Second Periodic Report ("U.S. Report") to the Committee Against Torture states that "the U.S. remains committed to respecting the rule of law, including the U.S. Constitution, federal statutes, and international treaty obligations, including the Torture Convention."[1] As discussed fully in the following report, the actions and omissions of the United States directly contradict these assurances.

A. Reservations and Understandings of the United States to the Convention Against Torture

In May 2000, the Committee Against Torture urged the United States to withdraw its reservations and understandings to the Convention Against Torture. Instead, the United States specifically relied upon its reservations and understandings to limit the application of the Convention in its response to the "global war on terrorism." For example:

The Detainee Treatment Act ("the DTA"), enacted in December 2005, attempted to close ambiguities in the extraterritorial application of the Convention by declaring that all individuals acting on behalf of the United States Government are categorically prohibited from engaging in or authorizing torture or cruel, inhuman or degrading treatment of detainees in U.S. custody regardless of the location of their detention, i.e., regardless of whether or not they are being held on U.S. territory.[5] Yet it remains to be seen whether the U.S. government will implement the DTA in a way that brings it into compliance with the Convention.

For example, the definition of cruel, inhuman or degrading treatment in the DTA is not as broad as the Convention requires. Moreover, there will be limited opportunities to test the government’s understanding of this provision in court because the CIA continues to "disappear" detainees into secret detention facilities where they are held incommunicado. Finally, the President’s statement upon signing the DTA indicated that he would construe the ban on "cruel, inhuman and degrading treatment of detainees in a manner consistent with the constitutional authority of the President" and the President’s powers as commander-in-chief, suggesting that the President has unilateral power to authorize unlawful acts.

B. Deliberate Circumvention of Human Rights Law in the "Global War on Terrorism" (Articles 1, 2, 16)

The U.S. government, in the aftermath of September 11, chose to fight terrorism by picking and choosing what principles of human rights and humanitarian law to apply. The abuse of detainees in U.S. custody was facilitated by the government’s decision not to apply the Geneva Conventions, and to narrowly interpret or deliberately ignore prohibitions in the Convention Against Torture and in the International Covenant of Civil and Political Rights. In a series of legal memoranda, senior administration lawyers, led by then-White House Counsel and current Attorney General Alberto Gonzales, developed a framework to justify the administration’s circumvention of international law prohibitions of torture and abuse.

C. Legal Status of Persons Captured by United States' Forces in the "Global War on Terrorism"

The United States asserts that all detainees captured in the "global war on terrorism" are "enemy combatants" and can be held pursuant to the President’s powers as commander-in-chief until the end of hostilities. Its position places all detainees in legal limbo in which they can be indefinitely detained without charge, denied access to counsel and family members, and provided with no meaningful access to a court. The U.S. continues to deny persons detained during hostilities in Afghanistan the status of prisoners of war ("POW") under the Geneva Conventions. The forums created by the U.S. Department of Defense for Guantánamo detainees to contest their status as "enemy combatants" that fail to guarantee fundamental due process protections. All of these policies put the detainees at high risk of torture and abuse.

D. Torture and Abuse in the "Global War on Terrorism" (Articles 1, 16)

Evidence from a range of sources, including government investigations, as well as over 100,000 government documents produced to the ACLU through the Freedom of Information Act ("FOIA") litigation, show a systemic pattern of torture and abuse of detainees in U.S. custody in Afghanistan, the U.S. Naval Base Station at Guantánamo Bay, Cuba, Iraq, and other locations outside the United States.[6] In many instances the harsh treatment was ordered as part of an approved list of interrogation methods to "soften up" detainees.

Reported methods of torture and abuse used against detainees include prolonged incommunicado detention; disappearances; beatings; death threats; painful stress positions; sexual humiliation; forced nudity; exposure to extreme heat and cold; denial of food and water; sensory deprivation such as hooding and blindfolding; sleep deprivation; water-boarding; use of dogs to inspire fear; and racial and religious insults. In addition, around one hundred detainees in U.S. custody in Afghanistan and Iraq have died. The government has acknowledged that 27 deaths in U.S. custody were homicide, some caused due to "strangulation," "hypothermia," "asphyxiation," and "blunt force injuries." These techniques constitute cruel, inhuman or degrading treatment and when used in combination or for prolonged periods of time may amount to torture.

The well-documented systemic and widespread abuse against detainees was the direct result of policies promulgated by high-level civilian and military leaders and the failure of these leaders to uphold their legal duty to prevent and prohibit torture and other cruel, inhuman or degrading treatment by subordinates. Thousands of detainees remain in U.S. military custody or control in Iraq, Afghanistan, Guantánamo and other locations, and remain subject to unlawful policies and practices in violation of the Convention and other international human rights treaties.

E. Torture and Abuse in the United States (Articles 1, 16)

On the domestic front, the United States has failed to correct laws and practices regarding supermax prisons, juvenile detention, and the use electro-shock and restraint devices, as recommended by the Committee Against Torture in 2000. The ACLU is particularly concerned about the following issues:

F. Inadequate Review of Interrogation Rules (Article 11)

The Detainee Treatment Act instructs that detainees held by the military must be treated in accordance with the U.S. Army Field Manual 34-52 on Intelligence Interrogation.[7] A revised version of the manual, not yet made public, reportedly prohibits the use of dogs, stripping, sleep deprivation, and stress positions. These techniques were previously authorized by Secretary of Defense Donald Rumsfeld for use in Guantánamo, and then "migrated" to Afghanistan and Iraq. The manual only governs Department of Defense (DOD) personnel and not the CIA, although it would reportedly cover detainees in DOD custody who are interrogated by CIA officers.

G. Unlawful Renditions (Articles 1, 3, 16)

The U.S. has engaged in unlawful renditions in which individuals are kidnapped and transferred by the government to foreign intelligence services in countries that are known for their routine use of torture for interrogation purposes, such as Egypt, Jordan, Saudi Arabia, and Syria. The U.S. has also unlawfully rendered individuals to secret CIA detention centers overseas where they are held incommunicado. Over one hundred people have been transferred through unlawful rendition since September 11. The U.S. transfers persons to another country when the U.S. believes it is "more likely than not" that a person will not be tortured in that country and relies upon diplomatic assurances to assess concerns of torture. Given the record of torture and lack of legal protections in many receiving countries, these assurances are virtually meaningless. The U.S. standard of "more likely than not" is a higher standard for a person to prove than the "substantial grounds" for risk of torture in the receiving country that is required by the Convention.

H. Failure to Conduct Prompt and Impartial Investigations (Article 12)

The U.S. military has initiated and completed several internal investigations into allegations of abuse in Afghanistan, Iraq, and Guantánamo. The U.S. Report repeatedly cites these investigations in the wake of the Abu Ghraib scandal to showcase the government’s seriousness in responding to abuse allegations. The investigations were compromised by the fact that most of the investigations were conducted by the military itself. The U.S. has refused to authorize any independent investigation into abuses.

No high-level officials involved in developing or implementing policies on the treatment of detainees in the "global war on terrorism" have been charged with any criminal activity related to the abuses. The U.S. government continues to assert that the abuse was simply the actions of a few rogue soldiers. There has been no investigation into the government’s secret transfer of detainees and the Office of Inspector General’s examination of the role of the CIA has not yet been made public.

There have been few prosecutions for homicide compared to the number of deaths of Afghans and Iraqis in U.S. custody. In most of the official publicly-known actions taken in response to allegations of abuse, the punishment has been non-judicial or administrative. In cases where someone was convicted, the punishment generally was not commensurate with the graveness of the crime. For example, despite finding an army interrogator (the highest-ranking officer prosecuted to date) guilty of homicide, the punishment was a reprimand and a $6,000 fine.[8] In another instance, a soldier who admitted to killing an unarmed handcuffed Iraqi at point-blank received a three-year sentence.[9] Such punishments send a message that torture and abuse committed by U.S. soldiers will not be severely punished.

Domestically, the United States has no independent, effective oversight bodies to monitor police departments, jails, prisons, and immigration detention centers. State laws unduly restrict access to prisoners by the media and non-governmental human rights organizations. In the absence of an independent body for monitoring prisons and jails, federal courts have become the reluctant overseers. Conditions of confinement in jails and prisons generally change only after protracted litigation and a court order. In addition, the ability of courts to protect prisoners and monitor prison conditions was weakened significantly by the Prison Litigation Reform Act ("PLRA"), which created obstacles for prisoners attempting to file cases, find lawyers, and obtain meaningful redress.[10]

I. Limitations on the Rights of Redress and Remedy (Articles 13, 14)

Serious limitations remain on the rights of redress and remedy for victims of torture and abuse committed by U.S. officials inside and outside of the United States. The rights of prisoners inside the United States to obtain redress are severely limited by the Prison Litigation Reform Act, which requires prisoners to exhaust protracted internal grievance procedures, and which fails to provide a remedy for mental or emotional injury without evidence of physical injury.

Victims of torture by U.S. officials outside the United States face even greater obstacles. The U.S. government continues to argue that victims have no remedy for torture and abuse in United States’ courts under domestic or international law. Most victims from Afghanistan and Iraq also have no remedy in their home countries or countries of residence. For example, Iraqi victims of torture cannot seek redress in Iraqi courts against U.S. personnel under a blanket immunity agreement that covers all U.S. personnel in Iraq.

J. Admission of Coerced Testimony (Article 15)

Both the Combatant Status Review Tribunals, which review the status of detainees designated by the U.S. as "enemy combatants" and held in Guantánamo, and the military commissions, created to try non-U.S. nationals as "enemy combatants," allow for the admission of coerced testimony. A new military commission instruction that would purportedly prevent the admission of evidence obtained under torture contains few safeguards to make the prohibition meaningful and does not exclude evidence exhorted under coercive interrogation techniques that fall short of torture but are nonetheless prohibited under the Convention Against Torture.

K. Failure to Make Torture a Distinct Crime (Articles 4, 5)

The U.S. government has not made torture a distinct federal crime, except for acts committed outside U.S. territory (18 U.S.C. § 2340A). Notably, despite evidence of torture committed by some U.S. forces, no U.S. official has been charged under this law. Following reports of torture and abuse, a few low-ranking soldiers have been court-martialed for offenses committed overseas under the Uniform Code of Military Justice ("UCMJ"). The UCMJ prohibits many acts such as assault, cruelty, and murder, but fails to prohibit "torture" as a distinct crime.

L. Failure to Adequately Educate and Train Government Officials (Article 10)

The U.S. government has failed to adequately educate and inform relevant personnel involved in the custody and interrogation of detainees about the absolute prohibition of torture, cruel, inhuman or degrading treatment. Rather, selective interpretations of treaty obligations were adopted by the U.S. to create vague and impermissible guidelines on detainee treatment. Although the President in 2002 said that detainees will be treated "humanely," the White House failed to provide any guidance regarding the definition of inhuman treatment.

The government’s own investigations into abuse in Iraq and Afghanistan and documents produced through the ACLU Freedom of Information Act litigation show gross deficiencies in training of U.S. personnel involved with detainees.[11] Government investigations concluded that soldiers and private contractors were not given adequate guidelines for the humane treatment of detainees, nor about acts prohibited by the Geneva Conventions. In one case, soldiers reported that prior to deployment in Iraq they did not receive specific training on detainee operations in the field and were thus relying on "techniques they literally remembered from the movies."[12] In some instances, soldiers were told that the "gloves need to come off" in their treatment of detainees and that soldiers should "beat the fuck out of detainees."[13]

Recommendations to the United States

Withdraw reservations and understandings and make necessary declarations

Amend and enact laws to criminalize torture

Ensure access to all prisoners and detainees in U.S. custody

End secret detentions

Interrogations must comply with human rights standards

End practice of unlawful renditions

Bring conditions of confinement into conformance with the Convention Against Torture

Prohibit long-term solitary confinement and sensory deprivation of persons in custody

Monitor and investigate the use of dangerous and cruel restraint procedures

Investigate and prosecute prison rape and sexual assault

Abolish life without parole for juveniles

Amend or repeal the Prison Litigation Reform Act

Prohibit the use of coerced testimony

Conduct independent and prompt investigations of all allegations of torture and abuse of persons in the custody

Hold accountable all perpetrators of torture and abuse

Provide human rights training to all government officials


Notes

[1] U.S. Department of State, Second Periodic Report to the Committee against Torture, U.N. Doc. CAT/C/48/Add.4 (June 2005) ("U.S. Report"), Sec. I, para. 4 (all references to the Annex to the U.S. Report herein are to the updated Annex dated October 2005).

[2] Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel to Alberto Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation Under 18 U.S.C. §§ 23440-23440A (Aug. 1, 2002) (hereinafter "Bybee, August 2002 Memorandum"), available at http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf.

[3] Dep’t of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, Apr. 4, 2003 (hereinafter "Dep’t of Defense, Working Group Report"), reprinted in The Torture Papers; The Road to Abu Ghraib, at 289 (Karen J. Greenberg and Joshua L. Dratel, ed., Cambridge Univ. Press, 2005).

[4] Responses from Alberto R. Gonzales (then Nominee for Attorney General) to the written questions of Senator Dianne Feinstein (Jan. 2005), excerpt available at http://web.amnesty.org/library/Index/
ENGAMR510832005?open&of=ENG-IRQ
. See also Eric Lichtblau, Gonzales Says Humane-Policy Order Doesn’t Bind C.I.A., N.Y. Times, Jan. 19, 2005.

[5] Detainee Treatment Act, Department of Defense Appropriations Act, 2006, Pub.L. No. 109-148, Div. A, Title X, § 1003, 119 Stat. 2739 (2005).

[6] In 2003, the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace filed a FOIA request seeking documents from the Central Intelligence Agency, Department of Justice, the Department of State, the Department of Defense and the Federal Bureau of Investigation, concerning treatment of detainees in U.S. custody in Afghanistan, Guantánamo Bay, Cuba, and Iraq. The vast majority of documents were released only following protracted and ongoing litigation and court orders directing government agencies to produce documents. Stipulation and Order, American Civil Liberties Union Foundation v. Dep’t of Defense, No. 04-cv-4151 (S.D.N.Y. Aug. 17, 2004), available at /torturefoia/legaldocuments/
eeOrderforResponsivedocs.pdf
. The CIA has yet to release any documents to the ACLU and this issue is currently before the courts. See generally /torturefoia/legaldocuments/index.html for the Torture FOIA legal documents.

[7] U.S. Dept. of Army, Field Manual 34-52: Intelligence Interrogation (Sept. 28, 1992) (hereinafter "Army Field Manual 34-52"), available at http://www.fas.org/irp/doddir/army/fm34-52.pdf.

[8] Iraq General’s Killer Reprimanded, BBC World Service, Jan. 24, 2006.

[9] Gregg K. Kakesako, Schofield Soldier gets 3-year term in Shooting, Honolulu Star Bulletin, Aug. 6, 2004.

[10] Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996).

[11] See generally Annex B (documents obtained through ACLU Freedom of Information Act litigation regarding treatment of detainees in Iraq, Afghanistan, and Guantánamo).

[12] Annex B49, Excerpt from Memorandum Re: 4th Infantry Division Detainee Operations Assessment Trip Report (full record available at http://action.aclu.org/torturefoia/released/091505/15937.pdf.

[13] Annex B1-3, Excerpt from AR 15-6 Investigation Report (full record available at /projects/foiasearch/pdf/DOD002818.pdf; Annex B4-5, Excerpt from AR-15 Investigation Report (full document available at /projects/foiasearch/pdf/DODDOA026827.pdf).

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