U.N. Convention Against Torture Observations

Gabor Rona, International Legal Director for Human Rights First, is in Geneva observing the United States’ presentations to the Committee and will also brief the Committee on several issues of concern. He is reporting daily on the events in Geneva as they unfold.

May 9, 2006

Last day in Geneva: The United States faces the UN Committee for the Second Time

Today was the United States’ second and final appearance before the Committee against Torture. As I mentioned in my earlier blog entries, the United States was represented by a very large – 26-member – delegation which included representatives from the Department of Justice, Department of State, Homeland Security and Department of Defense. The United States also submitted a voluminous (185-page) supplemental report purporting to answer specific questions raised by the Committee members in response to the United States’ Second Periodic report. This suggests a return from the brink of international disengagement. At the same time, however, the United States did not move away from its most criticized positions. For example, despite some pointed challenges from members of the Committee, the United States continued to maintain that the law of war applies to the U.S. conflict against al Qaeda (but not any other terrorist group) world-wide, that human rights rules do not apply to situations of armed conflict or to the conduct of U.S. officials beyond U.S. borders (even in peacetime), and that secret detention and extraordinary rendition are not prohibited practices under the Torture Convention. The U.S. also continued to insist that abuses of detainees in U.S. custody are aberrations rather than manifestations of policy and are thoroughly investigated and punished; the delegation did admit, however, that there were some failures in leadership.

One change in the U.S. position: waterboarding would be explicitly prohibited in the Army Field Manual, due to be released shortly. (The United States previously refused to comment on specific interrogation techniques). At the same time, however, the head of the US delegation, State Department Legal Advisor Bellinger made the startling assertion that even systematic torture in another country would not necessarily prevent the transfer of a detainee to that country. He also stated the government’s position that such transfer is not subject to judicial review – that is, the detainee has no right to habeas corpus, or any other independent means to challenge the process.

Another frank but disquieting admission by the United States came in response to a question about the future of Guantánamo. Bellinger noted the President’s assertion that Guantánamo detention facilities should not stay open indefinitely. However, he stated that alternatives were lacking and suggested that the detainees cannot be prosecuted either because they were not U.S. nationals (which is simply untrue), or because they did not plot or commit specific crimes against the United States. This was a startling statement and the first time I heard a government official say that we need to hold people without charges because they have not committed any crimes!

Over the course of the hearings, the United States has been confronted with an overwhelming body of facts that raise serious doubts about its adherence to international and domestic legal requirements. Unfortunately, the United States has responded with numerous misleading assertions and unsubstantiated counterclaims. For example, the United States claims that there is no exception to the legal obligation of humane treatment, but has indicated no willingness to rescind the President’s memorandum of February 7, 2002 that asserts precisely the contrary – that certain persons are “not legally entitled” to humane treatment. The Untied States claims that the McCain Amendment reflects the Administration’s commitment to humane treatment, but omits to mention that it fought tooth and nail against the law and supported a companion law that prevents Guantánamo detainees from asserting claims of torture in any U.S. court of law. The United States pleads for understanding when it claims to provide unprecedented due process for wartime detainees, but does not mention that its definitions of “war” and “enemy combatant" are so broad that, in its estimation, even little old ladies who unwittingly contribute to charities that funnel money to terrorist causes can be detained as “enemy combatants.”

In less than two weeks, the Committee against Torture will publish its concluding observations. Although it is unlikely that the United States will concede much in response to Committee’s findings, it will hopefully be deterred from some of the practices and positions it has embraced in violation of international and domestic law.

Human Rights First will report on the Committee’s findings when they are released.

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