Posted March 20, 2003
U.S. May Be Sidestepping U.N.
Convention Against Torture in War on Terror
 |
| "These are troubling times in terms of
the tenor of the debate," said Wendy Patten, U.S. Advocacy
Director at Human Rights Watch. |
A recent Washington Post article revealed
the fine lines in the struggle to balance human rights with security
of human life. The article told of a deputy police chief in Germany
investigating the kidnapping of a prominent banker's son. The
police nabbed the suspected kidnapper as he was picking up the
ransom, but for hours he toyed with police about the whereabouts
of the boy. The chief felt that it was "necessary to apply
certain measures of pain" to find the boy, according to Conference
on Public Service and the Law panelist David Stewart, Assistant
Legal Adviser for Diplomatic Law and Litigation in the U.S. State
Department's Office of the Legal Adviser. The deputy police chief
provided for medical staff to attend, and police informed the
suspect of his impending torture. Within minutes of the threat
of torture the suspect told police where the boy was; when police
searched the location they found he was already dead. Now the
police chief is facing a criminal investigation for torture, but
public opinion in his country supports him. Stewart and other
panelists participating in the Deportation and U.N. Convention
Against Torture panel March 15 suggested that U.S. officials also
are facing these kinds of decisions as they interrogate—or
allegedly allow other countries to interrogate—prisoners
in the "war on terror," raising new questions about
the United States' own compliance with the law.
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| Panelist David Stewart, Assistant Legal Adviser
for Diplomatic Law and Litigation in the U.S. State Department's
Office of the Legal Adviser, noted that even Alan Dershowitz
is willing to legalize torture in some cases. |
Stewart noted that even Alan Dershowitz, a noted
criminal defender, has called for relaxing the rules against torture
in "ticking time bomb" cases where lives could be at
stake. But according to the U.N. Convention Against Torture, approved
by the Senate in 1994, torture—by definition instigated or
acquiesced to by a public official, or person acting in an official
capacity—is illegal, with no exceptional circumstances allowed.
So that the treaty would not violate the Constitution, which dictates
that most questions of torture would be dealt with at the state
or local level under laws currently on the books, the treaty language
said the federal government would implement the treaty to the
extent of its federal authority, and take "appropriate"
measures to press states for implementation in situations under
their authority, Stewart said.
Reporting by the Washington Post and
New York Times that the United States is using or tacitly
condoning torture of prisoners by third-party countries suggests
the United States may be in violation of the U.N. Convention,
or at least sidestepping the rules, said Wendy Patten, U.S. Advocacy
Director at Human Rights Watch.
"These are troubling times in terms of
the tenor of the debate," she said. "Torture is an interrogation
method that has been condemned. [It is] not only illegal and immoral,
but unreliable" in getting information from prisoners.
Patten identified four groups of U.S. prisoners
numbering about 3,000 that could be at risk: 650 in Guantanamo
Bay; Jose Padilla and Yaser Hamdi, two U.S. citizens deemed "enemy
combatants" and held within the country; Sept. 11 special
detainees (last estimated at 1,200 in 2001), including many held
on immigration charges, material witness warrants, and federal
criminal charges (such as lying to the FBI); and detainees in
Afghanistan or on the Indian Ocean.
According to former and current national security
officials, Patten said, at a secret CIA interrogation center in
Bagram, Afghanistan, officials practiced "stress and duress"
techniques: prisoners reportedly were kept standing or kneeling
for hours, deprived of sleep, kept immobile, kept hooded, and
shackled until circulation concerns caused officials to unshackle
them. According to Patten, one official reportedly told a reporter,
"If you don't violate somebody's human rights some of the
time, you probably aren't doing your job." Two deaths at
Bagram have been ruled homicides by military medical officials,
but many prisoners are reportedly being shipped to Jordan, Syria
and Morocco, where they may face even harsher conditions.
"Legally and morally there is no distinction
in using torture and subcontracting it out," she said.
Patten said the allegations need to be addressed
by the Bush administration because of the growing perception that
the United States is torturing prisoners, "sending a signal
to other governments that torture is ok." Patten called for
a full investigation and systematic ongoing monitoring of interrogations,
either by the international oversight committee set up by the
Convention Against Torture or by independent groups like the World
Organization Against Torture. A lack of a high-level disavowal
of torture compromises the United States' role as a champion of
human rights, she argued.
The U.N. Convention Against Torture prohibits
extraditing or deporting any person to a country where they will
face a significant risk of torture. Unlike U.N. refugee and asylum
treaties, the Torture Convention does not exclude from its protections
criminals or security risks. This legal requirement to shelter
someone who may be dangerous presents challenging policy dilemmas,
addressed by panelist Bo Cooper in his presentation.
Cooper, who until a few weeks ago was General
Counsel of the INS and is now a Senior Counsel dealing with the
transition of immigration functions to the Department of Homeland
Security, emphasized that these "big, fat questions":
of immigration and deportation law are often dealt with by people
just a few years out of law school.
"These are the kinds of things you get
to do as a government attorney," he said, urging students
in the audience to consider such a career.
In 1998 Congress considered a statute denying
criminals protection from deportation back to the countries where
they would be tortured, but the INS read the treaty command as
an absolute and urged alternatives. The law Congress passed ultimately
said only to deny protection to the maximum extent consistent
with the Convention. INS's regulations therefore grant full "withholding
of removal" (a promise not to return the person) to most
who are covered by the Convention, but only "deferral of
removal" to criminals and security threats. Deferral of removal
is a status easier to cancel if, for example, the threat of torture
abates. U.S. law also allows the United States to keep those given
deferral of removal indefinitely in custody for national security
reasons. Cooper said these questions "might be debated slightly
differently" if presented after Sept. 11. He pointed out
that Canadian courts and officials have interpreted the Convention
differently, allowing officials to return a person to torture
for urgent national security reasons. The U.S. law allows the
return of a person if there's a less than 51 percent risk of torture
or if the country provides diplomatic assurances that torture
will not be used. Cooper said that such assurances have been relied
on only in three cases that he's aware of.
Cooper noted that Article 3 of the Convention,
which prohibits extradition of persons to countries where they
might be tortured, does not apply outside the United States under
U.S. law, although Congress passed a statute in 1998 that announces
a "policy" barring such returns by U.S. officers, even
extraterritorially.
Panelist Morton Sklar, Executive Director of
the World Organization Against Torture USA, the U.S. affiliate
of a coalition of 200 worldwide human rights monitoring groups,
marveled at how the national tenor towards torture has changed.
In one episode of the television show 24, he said, a CIA operative
withholds medical treatment from a terrorist in order to obtain
information.
Further complicating deportation issues, Sklar
said there is some "question of whether immigration courts
are in fact objective and independent the way they're supposed
to be." U.S. Attorney General John Ashcroft has almost cut
in half the number of judges on the Board of Immigration Appeals,
he said, getting rid of most liberal judges. He also cited developments
that "suggest a cutting-back of gender-based abuse protections."
He alleged that Ashcroft was gutting regulations proposed by the
Clinton administration near the end of the President's term authorizing
greater recognition of gender abuses as a basis for political
asylum. The previous attorney general had stopped deporting women
who were subject to gender-based abuses such as female genital
mutilation (FGM). The 7th Circuit Court of Appeals recently ruled
FGM to be torture.
Sklar asked the audience to "express your
views" to the attorney general and Congress about the new
restrictions in the definition of torture, He also encouraged
involvement in area refugee clinics. "Small steps can move
us in a more positive direction," he said.
• Reported by M. Wood
Law
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