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 Postarticle 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.

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 Postand
New York Timesthat 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 Sklar Martin

Bo Cooper

Photos L-R by Alison Perine.

Morton Sklar Professor David Martin served as panel moderator.

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.

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