Torture and the United States
Encyclopedia
Torture in the United States includes documented and alleged cases of torture
both inside the United States
and outside its borders by U.S. government personnel. While the term "torture" is defined in numerous places, including dictionaries and encyclopedias of various nation
s or culture
s, this article only addresses the legal
definition of the term, under the codified and case law
of the United States of America.See article on precising definition
. After the US dismissed United Nations
concerns about torture, one U.K. judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilised nations'.
is illegal and punishable within U.S territorial bounds. Prosecution of abuse occurring on foreign soil, outside of usual U.S. territorial jurisdiction, is difficult.
.
The US Supreme Court has held since at least the 1890s that punishments that involved torture are forbidden under the Eighth Amendment.
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;
mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) 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;
(C) the threat of imminent death; or
(D) 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
personality;
In 2004 the Immigration and Nationality Act was amended to make aliens who, whilst abroad, have committed torture, extrajudicial killings, or particularly severe violations of religious freedom, inadmissible to the United States, and therefore deportable.
(UDHR), which the United States participated in drafting. The United States is a party to the following conventions (international treaties) that prohibit torture: the American Convention on Human Rights
(signed 1977) and the International Covenant on Civil and Political Rights
(signed 1977; ratified 1992). It has neither signed nor ratified the Inter-American Convention to Prevent and Punish Torture
.
International law defines torture during an armed conflict as a war crime
. It also mandates that any person involved in ordering, allowing and even insuffuciently preventing and prosecuting war crimes is criminally liable under the command responsibility
doctrine.
on December 10, 1984, and signed by the President Ronald Reagan
on April 18, 1988. Ratification by the Senate took place on October 27, 1990.
, authorizing the executive to conduct military tribunals of so-called enemy combatants
and to hold them indefinitely without judicial review under the terms of habeas corpus
. Testimony coerced through humiliating or degrading treatment would be admissible in the tribunals. Amnesty International
and numerous commentators have criticized the Act for approving a system that uses torture, destroying the mechanisms for judicial review created by Hamdan v. Rumsfeld
, and creating a parallel legal system below international standards. Part of the act was an amendment that retroactively rewrote the War Crimes Act
, effectively making policy makers
, i.e., politicians
and military leaders, and those applying policy
, i.e., Central Intelligence Agency
interrogators and US Army soldiers, no longer subject to legal prosecution under U.S. law for what, before the amendment, was defined as a war crime, such as torture. Because of that critics describe the MCA as an amnesty law
for crimes committed in the "War on Terror
".
People living as slaves were regulated both in their service and when walking in public by legally authorized violence. On large plantations, slave overseers were authorized to whip and brutalize noncompliant slaves. Slave codes
authorized, indemnified or even required the use of violence and were long criticized by abolitionists for their brutality. Slaves as well as free Blacks were regulated by the Black Codes, and had their movements regulated by patrollers, conscripted from the white population, who were allowed to use summary punishment against escapees, which included maiming or killing them. Slaves risked losing members of their families as they were traded for profit or to pay debts.
from the mid-19th to the mid-20th centuries. Victims were usually black men, often accused of acting uppity towards (being insolent), assaulting, having sex with, or raping white people.
The murders of 4,743 people who were lynched in the United States between 1882 and 1968 were not often publicized. It is likely that many more unrecorded lynchings occurred in this period.
Most lynchings were inspired by unsolved crime, racism
, and innuendo. 3,500 of its victims were African Americans. Lynchings took place in every state except four, but were concentrated in the Cotton Belt (Mississippi
, Georgia
, Alabama
, Texas
and Louisiana
). Forms of violence and torture included genital mutilation, strangulation and the severing of limbs. Both police and lawmakers were frequently complicit in lynching, releasing prisoners to lynch crowds and/or refusing to prosecute the participants in a public act of murder. Despite numerous attempts to do so, federal anti-lynching legislation was consistently defeated.
interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread and considered acceptable in early American policing. In 1910 the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions. In response to this, "covert third degree torture" became popular, since it left no signs of physical abuse. The publication of the Wickersham Commission
's "Report on Lawlessness in Law Enforcement" in 1931 highlighted the widespread use of covert third degree torture by the police to force confessions, and led to a subsequent decline in its use over the 1930s and 1940s.
coordinated the Phoenix Program
, which targeted the infrastructure of the Communist National Front for the Liberation of South Vietnam
("Viet Cong"). The program killed 26,000 Viet Cong and captured over 60,000. Critics of the program assert that many of those identified by the program as Viet Cong members were actually civilians, who when captured suffered torture by the South Vietnamese Army, under CIA supervision.
American trainers and intelligence coordination officials supported the internal security apparatus of the regimes of South America's southern cone as those regimes carried out kidnappings and torture known as "disappearances" during the 1970s and 1980s, including as part of Operation Condor
. Similar support was provided to right-wing governments of Central America, particularly in the 1980s. Numerous participants in these abuses were trained by the U.S. Army School of the Americas. Americans were present as supervisors in the Mariona Prison in San Salvador, El Salvador, well-known for a wide variety of forms of torture. One author, Jennifer Harbury
, focussing on Central America, concluded that "A review of the materials leads relentlessly to just one conclusion: that the CIA and related U.S. intelligence agencies have since their inception engaged in the widespread practice of torture, either directly or through well-paid proxies." More broadly, others have argued that "torture has always been a staple of U.S. military interventions."
Source: The Washington Connection and Third World Fascism, Chomsky N, Herman ES, Spokesman (1979), ISBN 0896080900, pg 361.
One was the 1963 CIA document, KUBARK Counterintelligence Interrogation, which describes interrogation
techniques, including, among other things, "coercive counterintelligence interrogation of resistant sources." The CIA techniques involved were used in the CIA's Phoenix Program
in South Vietnam
. Eventually the CIA’s psychological methods were spread worldwide through the U.S. Agency for International Development’s Public Safety program and U.S. Army Mobile Training Teams.
Other manuals were prepared by the U.S. military and used between 1987 and 1991 for intelligence training courses at the U.S. Army School of the Americas (SOA). The manuals were also distributed by Special Forces Mobile Training teams to military personnel and intelligence schools in Colombia, Ecuador, El Salvador, Guatemala, and Peru.
The manuals advise that torture techniques can backfire and that the threat of pain is often more effective than pain itself. The manuals describe coercive techniques to be used "to induce psychological regression in the subject by bringing a superior outside force to bear on his will to resist." These techniques include prolonged constraint, prolonged exertion, extremes of heat, cold, or moisture, deprivation of food or sleep, disrupting routines, solitary confinement, threats of pain, deprivation of sensory stimuli, hypnosis
, and use of drugs or placebos.
In a July 2002 memo sent to the Pentagon's chief lawyer by the military's Joint Personnel Recovery Agency
, or JPRA
, the military agency that provided advice on harsh interrogation techniques for use against terrorism suspects, not only referred to the application of extreme duress as "torture" but warned that it would produce "unreliable information".
See also Office of Public Safety
.
In more modern policing, police brutality
has at times escalated to torture. Police officials have generally described these cases as aberrations or the actions of criminals in police uniform, as New York Police Commissioner Howard Safir described the attack on Louima. Police brutality critics, such as law professor Susan Bandes, have argued that such a view is erroneous and that it "allows police brutality to flourish in a number of ways, including making it easier to discount individual stories of police brutality, and weakening the case for any kind of systemic reform."
In the 1970s and 1980s the Chicago Police Department
's Area 2 unit under Commander Jon Burge
repeatedly used electroshock, near-suffocation by plastic bags and excessive beating on suspects. The City of Chicago's Office of Professional Standards (OPS) concluded that the physical abuse was systematic and, "The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture."
In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to use waterboarding
to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning." The sheriff was sentenced to ten years in prison, and the deputies to four years.
In 1997 Abner Louima
was sodomized with a plunger by New York police.
In September 1997, two former officers from the Adelanto Police Department, San Bernardino County, California, were jailed for two years on federal charges, after pleading guilty to beating a suspect during questioning and forcing another man to lick blood off the floor in 1994.
From the year 2000 onwards the Supermax facility at the Maine State Prison was the scene of video-taped forcible extractions that Lance Tapley in the Portland Phoenix wrote "look[ed] like torture." Additionally, audio recordings were made of the torture of Lester Siler in Campbell County, Tennessee.
In 2005 a Channel 4
documentary "Torture: America’s Brutal Prisons" showed video of naked prisoners being beaten, bitten by dogs, and stunned with Taser
guns and electric cattle prods. In one case a prisoner is strapped to a restraint chair and left for sixteen hours; two hours after being unshackled he dies from a blood clot. In another, mentally ill prisoner Charles Agster is suffocated to death. Another prisoner is found with a broken neck, broken toes and internal injuries following an argument with guards; after one month in a coma
he dies from septicaemia. Fire extinguisher sized canisters of pepper spray
are used to cover prisoners with chemicals, and they are then left, resulting in second degree burns
. Photos are shown of Frank Valdes, a convicted killer on Death Row
, who was beaten to death after writing to local Florida newspapers with allegations of prison officer corruption and brutality. Many of the segments in the documentary were several years old, e.g. from 1996, and were originally released to lawyers seeking justice for the victims of the offenses shown.
singled out stun belts—which produce an eight-second 50,000 volt electric shock
to incapacitate their wearer temporarily—as a mechanism of torture. More than 1,800 such weapons, which are banned in the United Kingdom
, were sold to U.S. prisons by 1999. According to Amnesty International, they have been used on defendants who conducted their own legal defense, minimum security prisoners who are HIV positive or have AIDS in Louisiana
, and used in abuse by guards at the Red Onion State Prison in Virginia
.
Detained immigrants, including refugees seeking asylum, at the Esmor Inc. facility in Elizabeth, New Jersey
, rebelled after practices of verbal and physical abuse, humiliation and corporal punishment. After the uprising, two dozen of them were beaten, stripped, forced to crawl through a gauntlet of officers, and made to chant, “America is number one.”
A report by the Justice Department Office of the Inspector General on the experience of 762 post-9/11 detainees found confirmed the physical and verbal abuse of detainees. On arrival at the Metropolitan Detention Center
in Brooklyn, New York, the detainees were slammed face first into a wall against a shirt with an American flag; the bloodstain left behind was described by one officer as the print of bloody noses and a mouth. Once inside they were threatened with detention for the rest of their lives, verbally abused, exposed to cold, deprived of sleep, and had their hands, cuffed arms, and fingers severely twisted.
These practices have resulted in a number of deaths. According to Human Rights First
, at least as many as 8 detainees have been tortured to death in U.S. custody in Iraq and Afghanistan. The pressure to torture has been so strong, that in some cases even U.S. military personnel have committed suicide, such as the case of Alyssa Peterson
.
does not apply in the case of overseas torture of aliens. Jennifer Harbury, a U.S. national whose husband Efraín Bámaca Velásquez had been tortured and murdered by CIA officials in Guatemala
, complained that these actions violated her husband's Fifth Amendment right not to be deprived of life or liberty without due process of law. On December 12, 2000 the Court of Appeals for the District Court of Columbia
rejected this claim, citing a lack of jurisdiction, since the events were planned and controlled in the United States, but the actual torture and murder occurred in Guatemala, a location where the U.S. did not exercise "de-facto political control".
" methods that were used in the U.S.'s War on Terrorism
, that had been sanctioned by the U.S. Executive branch of government at Cabinet level. Similar methods in 1978 were ruled by ECHR
to be inhuman and degrading treatment, but not torture, when used by the U.K.
in the early 1970s in Northern Ireland
. CIA agents have anonymously confirmed to the Washington Post in a December 26, 2002 report that the CIA routinely uses so-called "stress and duress
" interrogation techniques, which human rights organizations claim are acts of torture, in the US
-led War on Terrorism
. These sources state that CIA and military personnel beat up uncooperative suspects, confine them in cramped quarters, duct tape them to stretchers, and use other restraints that maintain the subject in an awkward and painful position for long periods of time. The phrase 'torture light' has been reported in the media and has been taken to mean acts that would not be legally defined as torture. Techniques similar to "stress and duress" were used by the UK in the early 1970s and were ruled to be "inhuman and degrading treatment" but not torture by the European Court of Human Rights. While this is in no way binding on the United States, it is seen as indicative of the state of international law on what constitutes torture.
Some techniques within the "stress and duress" category, such as water boarding, have long been considered as torture, by both the United States government and human rights groups. In its annual “Country Reports on Human Rights Practices,” the U.S. State Department has described the following practices as torture:
It is the position of the United States government that the legal memoranda constituted only permissible legal research, and did not signify the intent of the United States to use torture, which it opposes. Secretary of Defense Donald Rumsfeld
has complained about this prominent newspaper coverage and its implications. However, many influential U.S. thinkers also believe that Rumsfeld himself is a major part of the problem, quote the New York Times columnist Bob Herbert
:
The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate U.S. prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering," according to a previously secret Justice Department memo released on 24 July 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee
, then the Assistant Attorney General for the Office of Legal Counsel
, wrote in the memo. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.
Another memo released on the same day advises that "the waterboard
," does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "...which raises possible concerns about future U.S. judicial review of the [interrogation] Program."
A third memo instructs interrogators to keep records of sessions that use "enhanced interrogation techniques." The memo is signed by then-CIA director George Tenet and dated January 28, 2003.
The memos were made public by the American Civil Liberties Union
, which obtained the three CIA-related documents under Freedom of Information Act requests.
, through the use of hoods and spraypainted goggles, sleep deprivation, and selective use of painkillers for at least one captive who was shot in the groin during his apprehension are also used. The agents also indicate in the report that the CIA as a matter of course hands suspects over to foreign intelligence services with far fewer qualms about torture for more intensive interrogation. (The act of handing a suspect to another organization or country, where it is foreseeable that torture would occur, is a violation of the Convention against torture; see torture by proxy.) The Post reported that one U.S. official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."
Based on the Justice Department analyses, Defense Secretary Donald Rumsfeld
later approved in 2003 the use of 24 classified interrogation techniques for use on detainees at Guantanamo Bay, which after use on one prisoner were withdrawn. In court filings made public in January 2007, FBI agents reported that detainees at Guantanamo Bay were: chained in a fetal position to the floor for at least 18 hours, urinating and defecating on themselves; subjected to extremes of temperature; gagged with duct tape; held in stress positions while shackled; and subjected to loud music and flashing lights. Senior administration officials have repeatedly denied that torture is being conducted in the detention camps at Guantanamo Bay
. However, the Bush administration explicitly endorsed the use of interrogation techniques such as waterboarding in memos to the CIA, and one Pentagon official has publicly admitted that torture was conducted at Guantanamo Bay.
Manfred Nowak
, United Nations Special Rapporteur on torture
, said that numerous cases of torture ordered by U.S. officials and perpetrated by U.S. authorities are well documented.
Allegations emerged that in the Coalition occupation of Iraq after the second Gulf war, there was extensive use of torture techniques, allegedly supported by American military intelligence agents, in Iraqi jails such as Abu Ghraib
and others. In 2004 photos showing humiliation and abuse of prisoners leaked from Abu Ghraib
prison, causing a political and media scandal in the U.S. and the whole world.
Condoleezza Rice
, Secretary of State
ultimately told the CIA the harsher interrogation tactics were acceptable, In 2009 Rice stated, "We never tortured anyone."
On February 14, 2010, in an appearance on ABC
's This Week
, Vice-President Dick Cheney
reiterated his support of waterboarding
and enhanced interrogation techniques
for captured terrorist suspects, saying, "I was and remain a strong proponent of our enhanced interrogation program."
Pressed by the BBC in 2010 on his personal view of waterboarding, Presidential Advisor Karl Rove
said: “I’m proud that we kept the world safer than it was, by the use of these techniques. They’re appropriate, they’re in conformity with our international requirements and with US law.”
of the 3rd Armored Cavalry Regiment was convicted of negligent homicide for the torturing to death of Abed Hamed Mowhoush
, a general in the Iraqi Air Force
who had voluntarily surrendered to American forces. Welshofer received 60 days of barrack confinement and a US$6,000 fine.
, the Philippines
, Pakistan
, Afghanistan
, Uzbekistan
, Azerbaijan
, Jordan
, Egypt
, Iraq
, Kuwait
, UAE, Saudi Arabia
, Morocco
, Cyprus
, Cuba
, Diego Garcia
, and unspecified South Pacific
island nation(s). In addition, individuals are suspected to be or to have been held in temporary or permanent U.S. controlled facilities in Indonesia
, El Salvador
, Nigeria
, Equatorial Guinea
, Libya
, Israel
, Denmark
, Poland
, Romania
, Bulgaria
, Albania
, Hungary
, Germany
, and Scotland
. There are also allegations that persons categorized as prisoners of war have been tortured, abused or humiliated; or otherwise have had their rights afforded by the Geneva Convention violated.
Condoleezza Rice
stated in an April 2006 radio interview that the United States does not transfer people to places where they know they will be tortured.
, led by Carmen Trotta
were arrested at the gates of the White House demanding that the Obama administration support a criminal inquiry into torture under the Bush administration and release innocent detainees still held at Guantanamo. The protesters wearing orange jumpsuits and black hoods, were arrested, and charged with "failure to obey a lawful order" when they refused to leave the White House sidewalk.
.The United States was one of the primary sponsors of a Convention to prohibit torture and to protect human rights.Report; See In Matter of J-E, discussed herein. It was registered, and came into force, on 27 June 1987 in accordance with article 27(1) of the Convention.
The United States signed the Convention in the spring of the following year, officially declaring at the time of its signature on 18 April 1988 that
Thereafter, the United States formally notified the United Nations and its member states, a few months prior to its ratification, that
at the UN treaty website and are parsed here as follows:
The U.S. would only be bound to prevent the "cruel, inhuman or degrading treatment or punishment" that are addressed by article 16 of the ConventionThese article 16 acts are, by definition, not torture, but rather acts which evidence cruelty or inhumanity but which nevertheless do not rise to the level of "torture" under the Convention. to the extent the term "cruel, inhuman or degrading treatment or punishment" was synonymous with the "cruel, unusual and inhumane treatment or punishment
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States".
Pursuant to treaty option, the U.S. is not bound to resolve questions by international arbitration
, but it "reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case."
Regarding the definition of certain terms in the Convention,
Article 3 forbids deporting a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The US, attempting to avoid the difficulty of interpreting "substantial grounds for belief," interprets the phrase to mean "if it is more likely than not that he would be tortured." This is essentially the preponderance of evidence test.
Article 14 requires a State Party to provide, in its domestic legal system, a private right of action for damages to victims of torture. The U.S. understands this to apply only for torture committed within territory under the jurisdiction of that State Party.
The U.S. does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Constitution of the United States.
The Convention will only be implemented by the United States "to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention." In other words, the Convention per se is not U.S. law. By itself, it has no legal effect within the U.S. or upon its representatives. Rather, the Convention imposes an obligationThis "obligation" might itself only be enforceable in the court of world opinion or through United Nations resolution against the US. on the U.S. to enact and implement such domestic laws as will cause it to come into conformity with the requirements of the Convention. This understanding is echoed in the declaration below.
. must establish that it is more likely than not that he will be tortured in the country of removal.See Understanding number 2 attached to the U.S. ratification of the Convention, establishing the preponderance of evidence rule for the US. Thus, the alien seeking to stop his deportation bears the burden of proof (or risk of non-persuasion) to show that torture is "more likely than not" to occur in the destination country.
, concerned a 40-year old Nigerian woman who was facing a deportation order due to a drug conviction in the US. She claimed that if returned to Nigeria, she would be imprisoned and tortured as a result of her U.S. conviction.
In her December 1999 hearing before the immigration judge, she presented evidence of Nigeria's Decree No. 33, which authorized imprisonment in her situation. When asked how she knew she would be tortured, she said that some years ago, she had spoken with a Nigerian friend,She suggested that she had spoken to this person by telephone sometime in 1995, more than four years before she was giving her testimony. who had been convicted of a U.S. drug offense and then returned to Nigeria in 1995. The friend had told her that her family had to bring money to the jail for protection, that she slept on the floor and that "you probably get raped" by the guards because they have authority to do "whatever they can do." The friend remained in jail for 2 months until the family paid a bribe. M-B-A did not know if the friend had seen a judge before being incarcerated, or if the friend had been raped in the prison.
M-B-A also presented evidence that she had a chronic ulcer, asthma and suffered from depression; that she was on medication but had no one to help her with medicine if she ended up in jail; that her father was deceased and her mother lived in the UK and that she had no relations to help her in Nigeria, aside from an uncle who had sexually abused her as a child. She claimed she would be beaten and raped in prison by the guards and that most women suffered this treatment, and that her ex-fiance (who lived in Nigeria) would bribe prison guards to beat her.
The full Board of AppealsThe Board consists of up to fifteen immigration law specialists, who sit as immigration appellate administrative law judges. The Board is a part of the executive branch of the U.S. Government, rather than the judicial branch; it is not an "Article III" court under the U.S. Constitution, but rather a type of administrative court within the executive branch. Its decisions are subject to appeal to a U.S. Court of Appeals. considered the question of whether M-B-A had carried her burden of proof in showing that it was more likely than not that she would be tortured by a public official upon her return to Nigeria.
In a close 7-6 decision, the Board found that M-B-A had not demonstrated that it was more likely than not that she would be imprisoned in Nigeria on the basis of Decree 33. She did not present any evidence on the question of the extent to which the Decree was enforced, or against whom it was enforced. Her own evidence about enforcement was either (a) her own speculation or (b) based on the conversation with her friend's experience during a different Nigerian regime.In May 1999 the military regime in Nigeria was replaced with a civilian regime under President Obasanjo. Note 2 of decision. The Board stated
There were two separate dissenting opinions,A total of six judges dissented, four of them joining in one of the dissenting opinions. both of which agreed with the enunciated standard of proof to be used ("more likely than not"), but disagreed over the question of whether the burden had been met by M-B-A. Judge Schmidt's dissent cited the U.S. State Department's report on Nigeria's prison system, reported that one area of abuse in Nigerian prison was the intentional withholding of medical aid or medication. He found on the basis of this report that such withholding (for purposes of e.g. gaining bribes or inflicting punishment) was common in Nigeria and that death from such actions was common. He did not, however, address the majority's assertion that M-B-A had failed to establish, by a preponderance of the evidence, that she would be imprisoned in the first place under Decree No. 33, apparently taking this for granted.The majority decision does not address the question of the likelihood of torture within prison; instead, it finds that M-B-A did not show, by the required evidence standard, that she would be imprisoned at all, which rendered the question of treatment within prison as moot.
For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture:
the act must cause severe physical or mental pain or suffering; the act must be intentionally inflicted; the act must be inflicted for a proscribed purpose; the act must be inflicted by (or at the instigation of or with the consent or acquiescence of) a public official who has custody of the victim; and the act cannot arise from lawful sanctions.
J-E was a Haitian who had entered the U.S. illegally and who was later convicted of selling cocaine. The Government sought to deport him, but J-E claimed that he would be imprisoned and tortured if he were returned to Haiti. Therefore, he argued, Article 3 of the Convention prevented his being deported. The Board set out the five-part test for torture and noted that
It was admitted by all parties that J-E would be indefinitely detained upon return to Haiti. Deportees were held by police in holding cells for weeks before release. However, the State Department report (relied upon by all parties) confirmed that the Haitian government used this policy as a warning and a deterrent, to try to prevent deportees from committing crimes in Haiti.
J-E contended that in any case, the combination of indefinite detention with the admittedly substandard conditions of Haitian prison constitute torture. However, the Board noted that the Convention required that "torture" required a "specific intent" by the accused country in order for torture to result:
Finally, J-E maintained that mistreatment was common in Haitian prison and that he would be subjected to such mistreatment, and that constituted torture. The Board found that there was, in Haiti,
The Board considered all the evidence submitted and concluded that it showed that isolated incidents of torture did occur in Haitian detention facilities. However, this evidence was not sufficient to demonstrate that it was more likely than not that J-E would be subjected to torture upon his detention. There was no evidence that the torture was persistent or widespread; or that the Haitian government used torture as a policy; or that there was no meaningful international oversight.The Board noted that the Haitian government cooperated with the Red Cross in delivering aid and allowed a Miami Herald reporter access to the prisons (part of the newspaper story was used by J-E as his evidence in the hearing). Furthermore, the U.S. had urged the Haitian government to discontinue the indefinite detention practice and the President of Haiti had visited jails and had pardoned several women there, due to the awful conditions.
The Board accordingly held—in yet another 7-6 opinion with substantial dissenting opinions—that J-E had failed to carry his burden of showing that the admitted mistreatment was so pervasive that it therefore was more likely than not that he would be tortured in a Haitian jail, as opposed to being subjected to cruel and inhuman acts that, while despicable, were less than torture within the meaning of the applicable law. Most of the actions reported against Haiti, the Board decided, were sanctioned under Article 16 of the Convention as acts that were "cruel and inhuman" and that State Parties were obliged to correct, but nevertheless did not constitute "torture" within the meaning of Article 1 of the Convention.
J-E's appeal to the BIA was therefore dismissed and the deportation order remained in effect.
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
both inside the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and outside its borders by U.S. government personnel. While the term "torture" is defined in numerous places, including dictionaries and encyclopedias of various nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s or culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
s, this article only addresses the legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
definition of the term, under the codified and case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
of the United States of America.See article on precising definition
Precising definition
A precising definition is a definition that extends the lexical definition of a term for a specific purpose by including additional criteria that narrow down the set of things meeting the definition....
. After the US dismissed United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
concerns about torture, one U.K. judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilised nations'.
Legislation and treaties regarding torture
TortureTorture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
is illegal and punishable within U.S territorial bounds. Prosecution of abuse occurring on foreign soil, outside of usual U.S. territorial jurisdiction, is difficult.
Bill of Rights
It is debated as to whether or not torture as a punishment falls under the cruel and unusual punishment clause of the Eighth Amendment to the United States ConstitutionEighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted "
The US Supreme Court has held since at least the 1890s that punishments that involved torture are forbidden under the Eighth Amendment.
Domestic Legislation
Torture is also prohibited under . The definition of torture used is as follows:-
"torture" means 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" means the prolonged
mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) 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;
(C) the threat of imminent death; or
(D) 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
personality;
In 2004 the Immigration and Nationality Act was amended to make aliens who, whilst abroad, have committed torture, extrajudicial killings, or particularly severe violations of religious freedom, inadmissible to the United States, and therefore deportable.
Prohibition under International Law
Torture in all forms is banned by the 1948 Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
(UDHR), which the United States participated in drafting. The United States is a party to the following conventions (international treaties) that prohibit torture: the American Convention on Human Rights
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...
(signed 1977) and the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
(signed 1977; ratified 1992). It has neither signed nor ratified the Inter-American Convention to Prevent and Punish Torture
Inter-American Convention to Prevent and Punish Torture
The Inter-American Convention to Prevent and Punish Torture is an international human rights instrument, created in 1985 within the Western Hemisphere Organization of American States and intended to prevent torture and other similar activities....
.
International law defines torture during an armed conflict as a war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
. It also mandates that any person involved in ordering, allowing and even insuffuciently preventing and prosecuting war crimes is criminally liable under the command responsibility
Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
doctrine.
UN Convention Against Torture
The United States is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which originated in the United Nations General AssemblyUnited Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
on December 10, 1984, and signed by the President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
on April 18, 1988. Ratification by the Senate took place on October 27, 1990.
- Restricting the definition of "cruel, inhuman or degrading treatment or punishment" to "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution".
- Restricting acts of torture to the following list: "(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 personality."
Ending judicial review of torture against terror suspects
In October 2006, the United States enacted the Military Commissions Act of 2006Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
, authorizing the executive to conduct military tribunals of so-called enemy combatants
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
and to hold them indefinitely without judicial review under the terms of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. Testimony coerced through humiliating or degrading treatment would be admissible in the tribunals. Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and numerous commentators have criticized the Act for approving a system that uses torture, destroying the mechanisms for judicial review created by Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, and creating a parallel legal system below international standards. Part of the act was an amendment that retroactively rewrote the War Crimes Act
War Crimes Act of 1996
The War Crimes Act of 1996 was passed with overwhelming majorities by the United States Congress and signed into law by President Bill Clinton....
, effectively making policy makers
Bush Doctrine
The Bush Doctrine is a phrase used to describe various related foreign policy principles of former United States president George W. Bush. The phrase was first used by Charles Krauthammer in June 2001 to describe the Bush Administration's unilateral withdrawals from the ABM treaty and the Kyoto...
, i.e., politicians
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
and military leaders, and those applying policy
Commanding officer
The commanding officer is the officer in command of a military unit. Typically, the commanding officer has ultimate authority over the unit, and is usually given wide latitude to run the unit as he sees fit, within the bounds of military law...
, i.e., Central Intelligence Agency
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
interrogators and US Army soldiers, no longer subject to legal prosecution under U.S. law for what, before the amendment, was defined as a war crime, such as torture. Because of that critics describe the MCA as an amnesty law
Amnesty law
An amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...
for crimes committed in the "War on Terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
".
Military field manuals
In late 2006, the military issued updated field manuals on intelligence collection (FM 2-22.3. Human Intelligence Collector Operations, September 2006) and counterinsurgency (FM 3-24. Counterinsurgency, December 2006). Both manuals reiterated that "no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law." Specific techniques prohibited in the intelligence collection manual include:- Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner;
- HoodingHoodingHooding is the placing of a hood over the entire head of a prisoner. One legal scholar considers the hooding of prisoners to be a violation of international law, specifically the Third and Fourth Geneva Conventions, which demand that persons in the power of occupying forces be treated humanely....
, that is, placing hoods or sacks over the head of a detainee; using duct tape over the eyes; - Applying beatings, electric shock, burns, or other forms of physical pain;
- WaterboardingWaterboardingWaterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
; - Using military working dogs;
- Inducing hypothermiaHypothermiaHypothermia is a condition in which core temperature drops below the required temperature for normal metabolism and body functions which is defined as . Body temperature is usually maintained near a constant level of through biologic homeostasis or thermoregulation...
or heat injury; - Conducting mock executionMock executionA mock execution is a stratagem in which a victim is deliberately but falsely made to feel that his execution or that of another person is imminent or is taking place. It may be staged for an audience or a subject who is made to believe that he is being led to his own execution...
s; - Depriving the detainee of necessary food, water, or medical care.
Slavery
People living as slaves were regulated both in their service and when walking in public by legally authorized violence. On large plantations, slave overseers were authorized to whip and brutalize noncompliant slaves. Slave codes
Slave codes
Slave codes were laws each US state, which defined the status of slaves and the rights of masters. These codes gave slave-owners absolute power over the African slaves.-Definition of "slaves":Virginia, 1650:“Act XI...
authorized, indemnified or even required the use of violence and were long criticized by abolitionists for their brutality. Slaves as well as free Blacks were regulated by the Black Codes, and had their movements regulated by patrollers, conscripted from the white population, who were allowed to use summary punishment against escapees, which included maiming or killing them. Slaves risked losing members of their families as they were traded for profit or to pay debts.
Lynching
Lynching was a public act of murder, torture and both pre- and post-mortem mutilation carried out by crowds, primarily against African Americans. A form of mob violence and ostensible justice, usually involving (but by no means restricted to) the illegal hanging of suspected criminals, lynch law cast its pall over the Southern United StatesSouthern United States
The Southern United States—commonly referred to as the American South, Dixie, or simply the South—constitutes a large distinctive area in the southeastern and south-central United States...
from the mid-19th to the mid-20th centuries. Victims were usually black men, often accused of acting uppity towards (being insolent), assaulting, having sex with, or raping white people.
The murders of 4,743 people who were lynched in the United States between 1882 and 1968 were not often publicized. It is likely that many more unrecorded lynchings occurred in this period.
Most lynchings were inspired by unsolved crime, racism
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
, and innuendo. 3,500 of its victims were African Americans. Lynchings took place in every state except four, but were concentrated in the Cotton Belt (Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
, Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
and Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
). Forms of violence and torture included genital mutilation, strangulation and the severing of limbs. Both police and lawmakers were frequently complicit in lynching, releasing prisoners to lynch crowds and/or refusing to prosecute the participants in a public act of murder. Despite numerous attempts to do so, federal anti-lynching legislation was consistently defeated.
"Third degree"
The use of "third degreeThird degree (interrogation)
The third degree is a euphemism for the "inflicting of pain, physical or mental, to extract confessions or statements". In 1931 the Wickersham Commission found that use of the third degree was widespread in the United States. No one knows the origin of the term but there are several hypotheses. The...
interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread and considered acceptable in early American policing. In 1910 the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions. In response to this, "covert third degree torture" became popular, since it left no signs of physical abuse. The publication of the Wickersham Commission
Wickersham Commission
U.S. President Herbert Hoover established the Wickersham Commission, officially called the National Commission on Law Observance and Enforcement, on May 20th, 1929. Former Attorney General George W...
's "Report on Lawlessness in Law Enforcement" in 1931 highlighted the widespread use of covert third degree torture by the police to force confessions, and led to a subsequent decline in its use over the 1930s and 1940s.
Torture abroad during the Cold War
American officials were involved in counter-insurgency programs in which they did not prevent their allies, such as the ARVN from using torture during the 1960s to the 1980s. From 1967 to at least 1972, the Central Intelligence AgencyCentral Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
coordinated the Phoenix Program
Phoenix Program
The Phoenix Program |phoenix]]) was a controversial counterinsurgency program designed, coordinated, and executed by the United States Central Intelligence Agency , United States special operations forces, and the Republic of Vietnam's security apparatus during the Vietnam War that operated...
, which targeted the infrastructure of the Communist National Front for the Liberation of South Vietnam
National Front for the Liberation of South Vietnam
The Vietcong , or National Liberation Front , was a political organization and army in South Vietnam and Cambodia that fought the United States and South Vietnamese governments during the Vietnam War . It had both guerrilla and regular army units, as well as a network of cadres who organized...
("Viet Cong"). The program killed 26,000 Viet Cong and captured over 60,000. Critics of the program assert that many of those identified by the program as Viet Cong members were actually civilians, who when captured suffered torture by the South Vietnamese Army, under CIA supervision.
American trainers and intelligence coordination officials supported the internal security apparatus of the regimes of South America's southern cone as those regimes carried out kidnappings and torture known as "disappearances" during the 1970s and 1980s, including as part of Operation Condor
Operation Condor
Operation Condor , was a campaign of political repression involving assassination and intelligence operations officially implemented in 1975 by the right-wing dictatorships of the Southern Cone of South America...
. Similar support was provided to right-wing governments of Central America, particularly in the 1980s. Numerous participants in these abuses were trained by the U.S. Army School of the Americas. Americans were present as supervisors in the Mariona Prison in San Salvador, El Salvador, well-known for a wide variety of forms of torture. One author, Jennifer Harbury
Jennifer Harbury
Jennifer K. Harbury is an American lawyer, author, and human rights activist.Her personal story, writing, and activism are significant in revealing the complicity of the CIA in human rights abuses, particularly in Central America....
, focussing on Central America, concluded that "A review of the materials leads relentlessly to just one conclusion: that the CIA and related U.S. intelligence agencies have since their inception engaged in the widespread practice of torture, either directly or through well-paid proxies." More broadly, others have argued that "torture has always been a staple of U.S. military interventions."
Torture (Countries With US training) – Post World War II to 1975
| Torture Country | US-trained Military/Police | US military Aid (1946–1975) – $US(1979) |
|---|---|---|
| Greece | 14,144 | 2,794,900,000 |
| Portugal | 2,997 | 361,900,000 |
| Spain | 9,872 | 920,200,000 |
| Turkey | 18,900 | 4,576,400,00 |
| Indonesia | 4,757 | 218,200,000 |
| Philippines | 15,245 | 805,800,000 |
| South Korea | 32,479 | 6,542,300,000 |
| South Vietnam | 35,788 | 16,490,500,000 |
| Iran | 10,807 | 1,412,500,000 |
| Saudi Arabia | 1,380 | 295,900,000 |
| Morocco | 2,209 | 138,700,000 |
| Tunisia | 636 | 62,400,000 |
| Venezuela | 5,341 | 142,200,000 |
| Uruguay | 2,537 | 85,900,000 |
| Paraguay | 1,435 | 26,400,000 |
| Peru | 6,734 | 193,500,000 |
| Nicaragua | 4,897 | 25,500,000 |
| Mexico | 738 | 14,300,000 |
| Haiti | 567 | 4,200,000 |
| Guatemala | 3,030 | 39,300,000 |
| Dominican Republic | 3,705 | 38,200,000 |
| Colombia | 6,200 | 154,800,00 |
| Chile | 6,328 | 216,900,000 |
| Brazil | 8,448 | 603,100,00 |
| Bolivia | 3,956 | 56,600,000 |
| Argentina | 3,676 | 230,300,000 |
Source: The Washington Connection and Third World Fascism, Chomsky N, Herman ES, Spokesman (1979), ISBN 0896080900, pg 361.
U.S. intelligence training manuals
The Torture Manuals was a nickname for seven training manuals that had excerpts declassified to the public on September 20, 1996, by the Pentagon.One was the 1963 CIA document, KUBARK Counterintelligence Interrogation, which describes interrogation
Interrogation
Interrogation is interviewing as commonly employed by officers of the police, military, and Intelligence agencies with the goal of extracting a confession or obtaining information. Subjects of interrogation are often the suspects, victims, or witnesses of a crime...
techniques, including, among other things, "coercive counterintelligence interrogation of resistant sources." The CIA techniques involved were used in the CIA's Phoenix Program
Phoenix Program
The Phoenix Program |phoenix]]) was a controversial counterinsurgency program designed, coordinated, and executed by the United States Central Intelligence Agency , United States special operations forces, and the Republic of Vietnam's security apparatus during the Vietnam War that operated...
in South Vietnam
South Vietnam
South Vietnam was a state which governed southern Vietnam until 1975. It received international recognition in 1950 as the "State of Vietnam" and later as the "Republic of Vietnam" . Its capital was Saigon...
. Eventually the CIA’s psychological methods were spread worldwide through the U.S. Agency for International Development’s Public Safety program and U.S. Army Mobile Training Teams.
Other manuals were prepared by the U.S. military and used between 1987 and 1991 for intelligence training courses at the U.S. Army School of the Americas (SOA). The manuals were also distributed by Special Forces Mobile Training teams to military personnel and intelligence schools in Colombia, Ecuador, El Salvador, Guatemala, and Peru.
The manuals advise that torture techniques can backfire and that the threat of pain is often more effective than pain itself. The manuals describe coercive techniques to be used "to induce psychological regression in the subject by bringing a superior outside force to bear on his will to resist." These techniques include prolonged constraint, prolonged exertion, extremes of heat, cold, or moisture, deprivation of food or sleep, disrupting routines, solitary confinement, threats of pain, deprivation of sensory stimuli, hypnosis
Hypnosis
Hypnosis is "a trance state characterized by extreme suggestibility, relaxation and heightened imagination."It is a mental state or imaginative role-enactment . It is usually induced by a procedure known as a hypnotic induction, which is commonly composed of a long series of preliminary...
, and use of drugs or placebos.
In a July 2002 memo sent to the Pentagon's chief lawyer by the military's Joint Personnel Recovery Agency
Joint Personnel Recovery Agency
The Joint Personnel Recovery Agency, or JPRA, is charged with the coordinating and advancing capabilities for military, civil, and diplomatic efforts to obtain the release or recovery of captured, missing, or isolated United States personnel from uncertain or hostile environments and denied areas...
, or JPRA
Joint Personnel Recovery Agency
The Joint Personnel Recovery Agency, or JPRA, is charged with the coordinating and advancing capabilities for military, civil, and diplomatic efforts to obtain the release or recovery of captured, missing, or isolated United States personnel from uncertain or hostile environments and denied areas...
, the military agency that provided advice on harsh interrogation techniques for use against terrorism suspects, not only referred to the application of extreme duress as "torture" but warned that it would produce "unreliable information".
See also Office of Public Safety
Office of Public Safety
The Office of Public Safety was a US government agency, established in 1957 by US President Dwight D. Eisenhower to train police forces of US allies. It was officially part of USAID , and was close to the Central Intelligence Agency . Police-training teams were sent to South Vietnam, Iran, Taiwan,...
.
Domestic police and prisons
Police brutality
Police brutality is the intentional use of excessive force, usually physical, but potentially also in the form of verbal attacks and psychological intimidation, by a police officer....
has at times escalated to torture. Police officials have generally described these cases as aberrations or the actions of criminals in police uniform, as New York Police Commissioner Howard Safir described the attack on Louima. Police brutality critics, such as law professor Susan Bandes, have argued that such a view is erroneous and that it "allows police brutality to flourish in a number of ways, including making it easier to discount individual stories of police brutality, and weakening the case for any kind of systemic reform."
In the 1970s and 1980s the Chicago Police Department
Chicago Police Department
The Chicago Police Department, also known as the CPD, is the principal law enforcement agency of Chicago, Illinois, in the United States, under the jurisdiction of the Mayor of Chicago. It is the largest police department in the Midwest and the second largest local law enforcement agency in the...
's Area 2 unit under Commander Jon Burge
Jon Burge
Jon Graham Burge is a convicted felon and former Chicago Police Department detective and commander who gained notoriety for allegedly torturing more than 200 criminal suspects between 1972 and 1991, in order to force confessions...
repeatedly used electroshock, near-suffocation by plastic bags and excessive beating on suspects. The City of Chicago's Office of Professional Standards (OPS) concluded that the physical abuse was systematic and, "The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture."
In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to use waterboarding
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning." The sheriff was sentenced to ten years in prison, and the deputies to four years.
In 1997 Abner Louima
Abner Louima
Abner Louima is a Haitian who was assaulted, brutalized and forcibly sodomized with the handle of a bathroom plunger by New York City police officers after being arrested outside a Brooklyn nightclub in 1997....
was sodomized with a plunger by New York police.
In September 1997, two former officers from the Adelanto Police Department, San Bernardino County, California, were jailed for two years on federal charges, after pleading guilty to beating a suspect during questioning and forcing another man to lick blood off the floor in 1994.
From the year 2000 onwards the Supermax facility at the Maine State Prison was the scene of video-taped forcible extractions that Lance Tapley in the Portland Phoenix wrote "look[ed] like torture." Additionally, audio recordings were made of the torture of Lester Siler in Campbell County, Tennessee.
In 2005 a Channel 4
Channel 4
Channel 4 is a British public-service television broadcaster which began working on 2 November 1982. Although largely commercially self-funded, it is ultimately publicly owned; originally a subsidiary of the Independent Broadcasting Authority , the station is now owned and operated by the Channel...
documentary "Torture: America’s Brutal Prisons" showed video of naked prisoners being beaten, bitten by dogs, and stunned with Taser
Taser
A Taser is an electroshock weapon that uses electrical current to disrupt voluntary control of muscles. Its manufacturer, Taser International, calls the effects "neuromuscular incapacitation" and the devices' mechanism "Electro-Muscular Disruption technology"...
guns and electric cattle prods. In one case a prisoner is strapped to a restraint chair and left for sixteen hours; two hours after being unshackled he dies from a blood clot. In another, mentally ill prisoner Charles Agster is suffocated to death. Another prisoner is found with a broken neck, broken toes and internal injuries following an argument with guards; after one month in a coma
Coma
In medicine, a coma is a state of unconsciousness, lasting more than 6 hours in which a person cannot be awakened, fails to respond normally to painful stimuli, light or sound, lacks a normal sleep-wake cycle and does not initiate voluntary actions. A person in a state of coma is described as...
he dies from septicaemia. Fire extinguisher sized canisters of pepper spray
Pepper spray
Pepper spray, also known as OC spray , OC gas, and capsicum spray, is a lachrymatory agent that is used in riot control, crowd control and personal self-defense, including defense against dogs and bears...
are used to cover prisoners with chemicals, and they are then left, resulting in second degree burns
Burn
A burn is an injury to flesh caused by heat, electricity, chemicals, light, radiation, or friction.Burn may also refer to:*Combustion*Burn , type of watercourses so named in Scotland and north-eastern England...
. Photos are shown of Frank Valdes, a convicted killer on Death Row
Death row
Death row signifies the place, often a section of a prison, that houses individuals awaiting execution. The term is also used figuratively to describe the state of awaiting execution , even in places where no special facility or separate unit for condemned inmates exists.After individuals are found...
, who was beaten to death after writing to local Florida newspapers with allegations of prison officer corruption and brutality. Many of the segments in the documentary were several years old, e.g. from 1996, and were originally released to lawyers seeking justice for the victims of the offenses shown.
Stun belts
Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
singled out stun belts—which produce an eight-second 50,000 volt electric shock
Electric shock
Electric Shock of a body with any source of electricity that causes a sufficient current through the skin, muscles or hair. Typically, the expression is used to denote an unwanted exposure to electricity, hence the effects are considered undesirable....
to incapacitate their wearer temporarily—as a mechanism of torture. More than 1,800 such weapons, which are banned in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, were sold to U.S. prisons by 1999. According to Amnesty International, they have been used on defendants who conducted their own legal defense, minimum security prisoners who are HIV positive or have AIDS in Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, and used in abuse by guards at the Red Onion State Prison in Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
.
Border Patrol and immigration detention
The U.S. Border Patrol interdicts people crossing the border and maintains checkpoints and carries out raids in border regions. Human Rights Watch has documented severe human rights abuses by the Border Patrol, "including unjustified killing, torture, and rape, and routine beatings, rough physical treatment, and racially motivated verbal abuse."Detained immigrants, including refugees seeking asylum, at the Esmor Inc. facility in Elizabeth, New Jersey
Elizabeth, New Jersey
Elizabeth is a city in Union County, New Jersey, United States. As of the 2010 United States Census, the city had a total population of 124,969, retaining its ranking as New Jersey's fourth largest city with an increase of 4,401 residents from its 2000 Census population of 120,568...
, rebelled after practices of verbal and physical abuse, humiliation and corporal punishment. After the uprising, two dozen of them were beaten, stripped, forced to crawl through a gauntlet of officers, and made to chant, “America is number one.”
A report by the Justice Department Office of the Inspector General on the experience of 762 post-9/11 detainees found confirmed the physical and verbal abuse of detainees. On arrival at the Metropolitan Detention Center
Metropolitan Detention Center
"Metropolitan Detention Centers" are federal detention facilities operated by the Federal Bureau of Prisons and located throughout the United States...
in Brooklyn, New York, the detainees were slammed face first into a wall against a shirt with an American flag; the bloodstain left behind was described by one officer as the print of bloody noses and a mouth. Once inside they were threatened with detention for the rest of their lives, verbally abused, exposed to cold, deprived of sleep, and had their hands, cuffed arms, and fingers severely twisted.
Torture abroad
Forms of torture and abuse
Certain practices of the United States military, civilian agencies such as the CIA, and private contractors have been condemned both domestically and internationally as torture. A fierce debate regarding non-standard interrogation techniques exists within the U.S. civilian and military intelligence community, with no general consensus as to what practices under what conditions are acceptable.These practices have resulted in a number of deaths. According to Human Rights First
Human Rights First
Human Rights First is a nonprofit, nonpartisan human rights organization based in New York City and Washington, D.C....
, at least as many as 8 detainees have been tortured to death in U.S. custody in Iraq and Afghanistan. The pressure to torture has been so strong, that in some cases even U.S. military personnel have committed suicide, such as the case of Alyssa Peterson
Alyssa Peterson
Alyssa R. Peterson was a U.S. Army Specialist, Arabic language certification, serving with C Company, 311th Military Intelligence BN, 101st Airborne in Iraq. Peterson graduated from Northern Arizona University, after which she enlisted in the Army and attended the Defense Language Institute in...
.
Application of Fifth Amendment to overseas torture
In 1999 a U.S. court found that the Fifth AmendmentFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
does not apply in the case of overseas torture of aliens. Jennifer Harbury, a U.S. national whose husband Efraín Bámaca Velásquez had been tortured and murdered by CIA officials in Guatemala
Guatemala Human Rights Commission
The Guatemala Human Rights Commission/USA is a nonprofit, nonpartisan, humanitarian organization that monitors, documents, and reports on the human rights situation in Guatemala. GHRC advocates for survivors of human rights abuses in Guatemala, and works toward systemic change...
, complained that these actions violated her husband's Fifth Amendment right not to be deprived of life or liberty without due process of law. On December 12, 2000 the Court of Appeals for the District Court of Columbia
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
rejected this claim, citing a lack of jurisdiction, since the events were planned and controlled in the United States, but the actual torture and murder occurred in Guatemala, a location where the U.S. did not exercise "de-facto political control".
Torture, interrogation and prisons in the War on Terror
"Stress and duress"
In 2003 and 2004 there was substantial controversy over the "stress and duressStress and duress
Stress and duress is a term which has been used by the United States to describe interrogation techniques authorised for use by United States Armed Forces upon detainees who are determined to be a threat the United States...
" methods that were used in the U.S.'s War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
, that had been sanctioned by the U.S. Executive branch of government at Cabinet level. Similar methods in 1978 were ruled by ECHR
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
to be inhuman and degrading treatment, but not torture, when used by the U.K.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in the early 1970s in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. CIA agents have anonymously confirmed to the Washington Post in a December 26, 2002 report that the CIA routinely uses so-called "stress and duress
Stress and duress
Stress and duress is a term which has been used by the United States to describe interrogation techniques authorised for use by United States Armed Forces upon detainees who are determined to be a threat the United States...
" interrogation techniques, which human rights organizations claim are acts of torture, in the US
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
-led War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
. These sources state that CIA and military personnel beat up uncooperative suspects, confine them in cramped quarters, duct tape them to stretchers, and use other restraints that maintain the subject in an awkward and painful position for long periods of time. The phrase 'torture light' has been reported in the media and has been taken to mean acts that would not be legally defined as torture. Techniques similar to "stress and duress" were used by the UK in the early 1970s and were ruled to be "inhuman and degrading treatment" but not torture by the European Court of Human Rights. While this is in no way binding on the United States, it is seen as indicative of the state of international law on what constitutes torture.
Some techniques within the "stress and duress" category, such as water boarding, have long been considered as torture, by both the United States government and human rights groups. In its annual “Country Reports on Human Rights Practices,” the U.S. State Department has described the following practices as torture:
- stripping and blindfolding of prisoners (EgyptEgyptEgypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
) - subjecting prisoners to prolonged sun exposure in high temperatures and tying of hands and feet for extended periods (EritreaEritreaEritrea , officially the State of Eritrea, is a country in the Horn of Africa. Eritrea derives it's name from the Greek word Erethria, meaning 'red land'. The capital is Asmara. It is bordered by Sudan in the west, Ethiopia in the south, and Djibouti in the southeast...
) - sleep deprivation and "suspension for long periods in contorted positions" (IranIranIran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
) - sleep deprivation and solitary confinement (JordanJordanJordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
) - prolonged standing and isolation (TurkeyTurkeyTurkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
)
Legal analyses
In June 2004, the Wall Street Journal, the Washington Post, and the New York Times obtained copies of legal analyses prepared for the CIA and the Justice Department in 2002. These documents developed a legal basis for the use of torture by U.S. interrogators if acting under the directive of the President of the United States. The legal definition of torture by the Justice Department tightly narrowed to define as torture only actions which "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," and argued that actions that inflict any lesser pain, including moderate or fleeting pain, do not necessarily constitute torture.It is the position of the United States government that the legal memoranda constituted only permissible legal research, and did not signify the intent of the United States to use torture, which it opposes. Secretary of Defense Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
has complained about this prominent newspaper coverage and its implications. However, many influential U.S. thinkers also believe that Rumsfeld himself is a major part of the problem, quote the New York Times columnist Bob Herbert
Bob Herbert
Robert “Bob” Herbert is an American journalist op-ed columnist who wrote for The New York Times. His column was syndicated to other newspapers around the country. Herbert frequently writes on poverty, the Iraq war, racism and American political apathy towards race issues...
:
The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate U.S. prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering," according to a previously secret Justice Department memo released on 24 July 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee
Jay Bybee
Jay Scott Bybee is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional and administrative law....
, then the Assistant Attorney General for the Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
, wrote in the memo. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.
Another memo released on the same day advises that "the waterboard
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
," does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "...which raises possible concerns about future U.S. judicial review of the [interrogation] Program."
A third memo instructs interrogators to keep records of sessions that use "enhanced interrogation techniques." The memo is signed by then-CIA director George Tenet and dated January 28, 2003.
The memos were made public by the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, which obtained the three CIA-related documents under Freedom of Information Act requests.
Authorization and methods of torture and abuse
The Post article continues that sensory deprivationSensory deprivation
Sensory deprivation or perceptual isolation is the deliberate reduction or removal of stimuli from one or more of the senses. Simple devices such as blindfolds or hoods and earmuffs can cut off sight and hearing respectively, while more complex devices can also cut off the sense of smell, touch,...
, through the use of hoods and spraypainted goggles, sleep deprivation, and selective use of painkillers for at least one captive who was shot in the groin during his apprehension are also used. The agents also indicate in the report that the CIA as a matter of course hands suspects over to foreign intelligence services with far fewer qualms about torture for more intensive interrogation. (The act of handing a suspect to another organization or country, where it is foreseeable that torture would occur, is a violation of the Convention against torture; see torture by proxy.) The Post reported that one U.S. official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."
Based on the Justice Department analyses, Defense Secretary Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
later approved in 2003 the use of 24 classified interrogation techniques for use on detainees at Guantanamo Bay, which after use on one prisoner were withdrawn. In court filings made public in January 2007, FBI agents reported that detainees at Guantanamo Bay were: chained in a fetal position to the floor for at least 18 hours, urinating and defecating on themselves; subjected to extremes of temperature; gagged with duct tape; held in stress positions while shackled; and subjected to loud music and flashing lights. Senior administration officials have repeatedly denied that torture is being conducted in the detention camps at Guantanamo Bay
Camp X-Ray
Camp X-Ray was a temporary detention facility at the Guantanamo Bay detention camp of Joint Task Force Guantanamo on the U.S. Naval Base in Guantánamo Bay, Cuba.The first twenty detainees arrived at Guantanamo on January 11, 2002....
. However, the Bush administration explicitly endorsed the use of interrogation techniques such as waterboarding in memos to the CIA, and one Pentagon official has publicly admitted that torture was conducted at Guantanamo Bay.
Manfred Nowak
Manfred Nowak
Manfred Nowak is an Austrian human rights lawyer.Nowak was a student of Felix Ermacora, and cooperated with him until Ermacora's death in 1995. They co-founded the Ludwig Boltzmann Institut für Menschenrechte in 1992...
, United Nations Special Rapporteur on torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, said that numerous cases of torture ordered by U.S. officials and perpetrated by U.S. authorities are well documented.
"We possess all the evidence which proves that the torture methods used in interrogation by the U.S. government were explicitly ordered by former U.S. defence minister Donald Rumsfeld...Obviously, these orders were given with the highest U.S. authorities' knowledge."
Allegations emerged that in the Coalition occupation of Iraq after the second Gulf war, there was extensive use of torture techniques, allegedly supported by American military intelligence agents, in Iraqi jails such as Abu Ghraib
Abu Ghraib
The city of Abu Ghraib in the Baghdad Governorate of Iraq is located just west of Baghdad's city center, or northwest of Baghdad International Airport. It has a population of 189,000. The old road to Jordan passes through Abu Ghraib...
and others. In 2004 photos showing humiliation and abuse of prisoners leaked from Abu Ghraib
Abu Ghraib
The city of Abu Ghraib in the Baghdad Governorate of Iraq is located just west of Baghdad's city center, or northwest of Baghdad International Airport. It has a population of 189,000. The old road to Jordan passes through Abu Ghraib...
prison, causing a political and media scandal in the U.S. and the whole world.
Condoleezza Rice
Condoleezza Rice
Condoleezza Rice is an American political scientist and diplomat. She served as the 66th United States Secretary of State, and was the second person to hold that office in the administration of President George W. Bush...
, Secretary of State
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
ultimately told the CIA the harsher interrogation tactics were acceptable, In 2009 Rice stated, "We never tortured anyone."
On February 14, 2010, in an appearance on ABC
American Broadcasting Company
The American Broadcasting Company is an American commercial broadcasting television network. Created in 1943 from the former NBC Blue radio network, ABC is owned by The Walt Disney Company and is part of Disney-ABC Television Group. Its first broadcast on television was in 1948...
's This Week
This Week (ABC TV series)
This Week is ABC's Sunday morning political affairs program.The Sunday morning talk show has aired on Sunday mornings on ABC since 1981; the program is initially aired at 9:00 AM ET, although many stations air the program later, especially those in other time zones...
, Vice-President Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
reiterated his support of waterboarding
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
and enhanced interrogation techniques
Enhanced interrogation techniques
Enhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, often described as torture...
for captured terrorist suspects, saying, "I was and remain a strong proponent of our enhanced interrogation program."
Pressed by the BBC in 2010 on his personal view of waterboarding, Presidential Advisor Karl Rove
Karl Rove
Karl Christian Rove was Senior Advisor and Deputy Chief of Staff to former President George W. Bush until Rove's resignation on August 31, 2007. He has headed the Office of Political Affairs, the Office of Public Liaison, and the White House Office of Strategic Initiatives...
said: “I’m proud that we kept the world safer than it was, by the use of these techniques. They’re appropriate, they’re in conformity with our international requirements and with US law.”
Prosecutions
In January 2006, Chief Warrant Officer Lewis E. Welshofer Jr.Lewis E. Welshofer Jr.
Lewis E. Welshofer Jr. is an United States Army soldier, convicted of homicide of an Iraqi prisoner of war on November 23, 2003 in al-Qaim. Welshofer was then serving as a Chief Warrant Officer in the 3d Armored Cavalry Regiment....
of the 3rd Armored Cavalry Regiment was convicted of negligent homicide for the torturing to death of Abed Hamed Mowhoush
Abed Hamed Mowhoush
Abed Hamed Mowhoush was a major general / air vice-marshal believed to be in command of the Iraqi Air Force or Iraqi air defence during the regime of Saddam Hussein immediately prior to the 2003 Invasion of Iraq, until his surrender to United States forces on 10 November 2003. He died on 26...
, a general in the Iraqi Air Force
Iraqi Air Force
The Iraqi Air Force or IQAF is the military branch in Iraq responsible for the policing of international borders, surveillance of national assets and aerial operations...
who had voluntarily surrendered to American forces. Welshofer received 60 days of barrack confinement and a US$6,000 fine.
Secret detention facilities
Both United States citizens and foreign nationals are occasionally captured outside of the United States and transferred to secret U.S. administered detention facilities, sometimes being held incommunicado for periods of months or years. Overseas detention facilities are known to be or to have been maintained at least in ThailandThailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
, the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
, Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
, Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
, Uzbekistan
Uzbekistan
Uzbekistan , officially the Republic of Uzbekistan is a doubly landlocked country in Central Asia and one of the six independent Turkic states. It shares borders with Kazakhstan to the west and to the north, Kyrgyzstan and Tajikistan to the east, and Afghanistan and Turkmenistan to the south....
, Azerbaijan
Azerbaijan
Azerbaijan , officially the Republic of Azerbaijan is the largest country in the Caucasus region of Eurasia. Located at the crossroads of Western Asia and Eastern Europe, it is bounded by the Caspian Sea to the east, Russia to the north, Georgia to the northwest, Armenia to the west, and Iran to...
, Jordan
Jordan
Jordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
, Egypt
Egypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
, Iraq
Iraq
Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
, Kuwait
Kuwait
The State of Kuwait is a sovereign Arab state situated in the north-east of the Arabian Peninsula in Western Asia. It is bordered by Saudi Arabia to the south at Khafji, and Iraq to the north at Basra. It lies on the north-western shore of the Persian Gulf. The name Kuwait is derived from the...
, UAE, Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
, Morocco
Morocco
Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara...
, Cyprus
Cyprus
Cyprus , officially the Republic of Cyprus , is a Eurasian island country, member of the European Union, in the Eastern Mediterranean, east of Greece, south of Turkey, west of Syria and north of Egypt. It is the third largest island in the Mediterranean Sea.The earliest known human activity on the...
, Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
, Diego Garcia
Diego Garcia
Diego Garcia is a tropical, footprint-shaped coral atoll located south of the equator in the central Indian Ocean at 7 degrees, 26 minutes south latitude. It is part of the British Indian Ocean Territory [BIOT] and is positioned at 72°23' east longitude....
, and unspecified South Pacific
Oceania
Oceania is a region centered on the islands of the tropical Pacific Ocean. Conceptions of what constitutes Oceania range from the coral atolls and volcanic islands of the South Pacific to the entire insular region between Asia and the Americas, including Australasia and the Malay Archipelago...
island nation(s). In addition, individuals are suspected to be or to have been held in temporary or permanent U.S. controlled facilities in Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
, El Salvador
El Salvador
El Salvador or simply Salvador is the smallest and the most densely populated country in Central America. The country's capital city and largest city is San Salvador; Santa Ana and San Miguel are also important cultural and commercial centers in the country and in all of Central America...
, Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
, Equatorial Guinea
Equatorial Guinea
Equatorial Guinea, officially the Republic of Equatorial Guinea where the capital Malabo is situated.Annobón is the southernmost island of Equatorial Guinea and is situated just south of the equator. Bioko island is the northernmost point of Equatorial Guinea. Between the two islands and to the...
, Libya
Libya
Libya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
, Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
, Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, Bulgaria
Bulgaria
Bulgaria , officially the Republic of Bulgaria , is a parliamentary democracy within a unitary constitutional republic in Southeast Europe. The country borders Romania to the north, Serbia and Macedonia to the west, Greece and Turkey to the south, as well as the Black Sea to the east...
, Albania
Albania
Albania , officially known as the Republic of Albania , is a country in Southeastern Europe, in the Balkans region. It is bordered by Montenegro to the northwest, Kosovo to the northeast, the Republic of Macedonia to the east and Greece to the south and southeast. It has a coast on the Adriatic Sea...
, Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, and Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. There are also allegations that persons categorized as prisoners of war have been tortured, abused or humiliated; or otherwise have had their rights afforded by the Geneva Convention violated.
Torture and extraordinary rendition
"Extraordinary rendition" and "irregular rendition" have been used to describe the extrajudicial transfer of a person from one state to another, and "Torture by proxy" is used to describe extraordinary rendition by the United States, with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that amount to torture. Critics state that torture has occurred with the knowledge or acquiescence of the United States. United States Secretary of StateUnited States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
Condoleezza Rice
Condoleezza Rice
Condoleezza Rice is an American political scientist and diplomat. She served as the 66th United States Secretary of State, and was the second person to hold that office in the administration of President George W. Bush...
stated in an April 2006 radio interview that the United States does not transfer people to places where they know they will be tortured.
Protests
On April 30, 2009, 62 members of Witness Against TortureWitness Against Torture
Witness Against Torture is a group calling for the closure of the Guantanamo Bay detention camp where the United States is holding prisoners as "unlawful enemy combatants"...
, led by Carmen Trotta
Carmen Trotta
Carmen Trotta is a pacifist. Consistent with his service in the Catholic Worker Movement, he has been an opponent of the war in Iraq, even when it had the support of 90% of US citizens...
were arrested at the gates of the White House demanding that the Obama administration support a criminal inquiry into torture under the Bush administration and release innocent detainees still held at Guantanamo. The protesters wearing orange jumpsuits and black hoods, were arrested, and charged with "failure to obey a lawful order" when they refused to leave the White House sidewalk.
History of U.S. Accession
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) was adopted on 10 December 1984 at the thirty-ninth session of the General Assembly of the United NationsUnited Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
.The United States was one of the primary sponsors of a Convention to prohibit torture and to protect human rights.Report; See In Matter of J-E, discussed herein. It was registered, and came into force, on 27 June 1987 in accordance with article 27(1) of the Convention.
The United States signed the Convention in the spring of the following year, officially declaring at the time of its signature on 18 April 1988 that
The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary.
Thereafter, the United States formally notified the United Nations and its member states, a few months prior to its ratification, that
...nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
Ratification
The U.S. ratification itself, on 21 October 1994, came some six years after the spring 1988 signature and was subject to numerous (A) reservations, (B) understandings and (C) declarations. These can be read verbatimVerbatim
Verbatim may refer to:*Verbatim Latin - the term "Verbatim" means, in a UK legal context: "word by word, exactly"*Verbatim Corporation, a US company that markets storage media and flash memory*Verbatim , a magazine edited by Erin McKean...
at the UN treaty website and are parsed here as follows:
- A. Reservations: The U.S. made two reservations in connection with its ratification.
The U.S. would only be bound to prevent the "cruel, inhuman or degrading treatment or punishment" that are addressed by article 16 of the ConventionThese article 16 acts are, by definition, not torture, but rather acts which evidence cruelty or inhumanity but which nevertheless do not rise to the level of "torture" under the Convention. to the extent the term "cruel, inhuman or degrading treatment or punishment" was synonymous with the "cruel, unusual and inhumane treatment or punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States".
Pursuant to treaty option, the U.S. is not bound to resolve questions by international arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, but it "reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case."
- B. Understandings: The U.S. announced certain interpretive understandings, "which shall apply to the obligations of the United States under this Convention:"
Regarding the definition of certain terms in the Convention,
-
- (a) "Torture"The term "torture" is legally defined in article 1(1) of the Convention, as follows:
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.
However, the U.S. has declared that the Convention is not self-executing and therefore the Convention's definition does not directly apply in U.S. law. The U.S. has implemented the Convention definition through its Code of Federal RegulationsCode of Federal RegulationsThe Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
. must be specifically intended to inflict severe physical or mental pain. Furthermore, "mental pain" refers to prolonged mental harm resulting from either- (1) the intentional infliction of severe physical pain;
- (2) the administration of mind altering drugs;
- (3) the use of other procedures that are also "calculated to disrupt profoundly the senses or the personality;"
- (4) the threat of imminent death; or
- (5) the threat that another person (e.g. a spouse or relative) will imminently be subjected to the foregoing.
- (a) "Torture"The term "torture" is legally defined in article 1(1) of the Convention, as follows:
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- (b) "Torture" must be an action against a victim in the torturer's custody.
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- (c) "Sanction"The term "sanction" is used in article 1. includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law.
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- (d) "Acquiescence"The term "acquiescence" is used in article 1. requires that the public official, prior to the activity constituting torture, be aware that such activity is imminent, thereafter violating his duty to prevent such activity.
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- (e) A noncompliance with applicable legal procedural standardsFor instance, a failure to promptly inform a suspect that he has a right to see a lawyer, free of charge if he is indigent. does not per se constitute torture.
Article 3 forbids deporting a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The US, attempting to avoid the difficulty of interpreting "substantial grounds for belief," interprets the phrase to mean "if it is more likely than not that he would be tortured." This is essentially the preponderance of evidence test.
Article 14 requires a State Party to provide, in its domestic legal system, a private right of action for damages to victims of torture. The U.S. understands this to apply only for torture committed within territory under the jurisdiction of that State Party.
The U.S. does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Constitution of the United States.
The Convention will only be implemented by the United States "to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention." In other words, the Convention per se is not U.S. law. By itself, it has no legal effect within the U.S. or upon its representatives. Rather, the Convention imposes an obligationThis "obligation" might itself only be enforceable in the court of world opinion or through United Nations resolution against the US. on the U.S. to enact and implement such domestic laws as will cause it to come into conformity with the requirements of the Convention. This understanding is echoed in the declaration below.
- C. Declarations: The U.S. declared that the provisions of articles 1 through 16 of the Convention are not self-executingSelf-executing rightSelf-executing rights in international human rights law are rights that are formulated in such a way that one can deduce that it was the purpose to create international laws that citizens can invoke directly in their national courts...
.
Evidence of violations
By transferring military detainees to Iraqi control, the U.S. appears knowingly to have violated the Convention Against Torture. The Convention proscribes signatory states from transferring a detainee to other countries "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. had received reports of more than a thousand allegations, many of them substantiated by medical evidence, of torture in Iraqi jails. Yet US authorities transferred thousands of prisoners to Iraqi custody, including almost 2,000 who were transferred to the Iraqi government as recently as July 2010.Burden of Proof
In the US, an alien seeking protection against deportation under Article 3 of the ConventionArticle 3 provides thatAs noted, the U.S. opted to interpret the vague language of "substantial grounds" in article 3(1) as synonymous with the preponderance of evidence standard found in the common law; the "preponderance" standard has been subject of ample decided cases in the US, creating plenty of judicial precedent
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
. must establish that it is more likely than not that he will be tortured in the country of removal.See Understanding number 2 attached to the U.S. ratification of the Convention, establishing the preponderance of evidence rule for the US. Thus, the alien seeking to stop his deportation bears the burden of proof (or risk of non-persuasion) to show that torture is "more likely than not" to occur in the destination country.
In re M-B-A
In re M-B-A, a 2002 decision by the BIABoard of Immigration Appeals
The Board of Immigration Appeals is the part of the Executive Office for Immigration Review that reviews the decisions of the Immigration Courts and some decisions of the U.S. Citizenship and Immigration Services. It is an administrative appellate body that is part of the United States Department...
, concerned a 40-year old Nigerian woman who was facing a deportation order due to a drug conviction in the US. She claimed that if returned to Nigeria, she would be imprisoned and tortured as a result of her U.S. conviction.
In her December 1999 hearing before the immigration judge, she presented evidence of Nigeria's Decree No. 33, which authorized imprisonment in her situation. When asked how she knew she would be tortured, she said that some years ago, she had spoken with a Nigerian friend,She suggested that she had spoken to this person by telephone sometime in 1995, more than four years before she was giving her testimony. who had been convicted of a U.S. drug offense and then returned to Nigeria in 1995. The friend had told her that her family had to bring money to the jail for protection, that she slept on the floor and that "you probably get raped" by the guards because they have authority to do "whatever they can do." The friend remained in jail for 2 months until the family paid a bribe. M-B-A did not know if the friend had seen a judge before being incarcerated, or if the friend had been raped in the prison.
M-B-A also presented evidence that she had a chronic ulcer, asthma and suffered from depression; that she was on medication but had no one to help her with medicine if she ended up in jail; that her father was deceased and her mother lived in the UK and that she had no relations to help her in Nigeria, aside from an uncle who had sexually abused her as a child. She claimed she would be beaten and raped in prison by the guards and that most women suffered this treatment, and that her ex-fiance (who lived in Nigeria) would bribe prison guards to beat her.
The full Board of AppealsThe Board consists of up to fifteen immigration law specialists, who sit as immigration appellate administrative law judges. The Board is a part of the executive branch of the U.S. Government, rather than the judicial branch; it is not an "Article III" court under the U.S. Constitution, but rather a type of administrative court within the executive branch. Its decisions are subject to appeal to a U.S. Court of Appeals. considered the question of whether M-B-A had carried her burden of proof in showing that it was more likely than not that she would be tortured by a public official upon her return to Nigeria.
In a close 7-6 decision, the Board found that M-B-A had not demonstrated that it was more likely than not that she would be imprisoned in Nigeria on the basis of Decree 33. She did not present any evidence on the question of the extent to which the Decree was enforced, or against whom it was enforced. Her own evidence about enforcement was either (a) her own speculation or (b) based on the conversation with her friend's experience during a different Nigerian regime.In May 1999 the military regime in Nigeria was replaced with a civilian regime under President Obasanjo. Note 2 of decision. The Board stated
she has [not] met her burden of [establishing] that it is more likely than not that her return to Nigeria would result in her detention or imprisonment. . . . [She] must provide some current evidence, or at least more meaningful historical evidence, regarding . . . enforcement of Decree 33 on individuals similarly situation to herself. . . . [Her] case is based on a chain of assumptions and a fear of what might happen, rather than . . . demonstrating that it is more likely than not that she will be subjected to torture. . . .Accordingly, the BIA held that M-B-A should be deported.
There were two separate dissenting opinions,A total of six judges dissented, four of them joining in one of the dissenting opinions. both of which agreed with the enunciated standard of proof to be used ("more likely than not"), but disagreed over the question of whether the burden had been met by M-B-A. Judge Schmidt's dissent cited the U.S. State Department's report on Nigeria's prison system, reported that one area of abuse in Nigerian prison was the intentional withholding of medical aid or medication. He found on the basis of this report that such withholding (for purposes of e.g. gaining bribes or inflicting punishment) was common in Nigeria and that death from such actions was common. He did not, however, address the majority's assertion that M-B-A had failed to establish, by a preponderance of the evidence, that she would be imprisoned in the first place under Decree No. 33, apparently taking this for granted.The majority decision does not address the question of the likelihood of torture within prison; instead, it finds that M-B-A did not show, by the required evidence standard, that she would be imprisoned at all, which rendered the question of treatment within prison as moot.
What is "torture"?
"Torture" within the meaning of the Convention (and 8 Code of Federal Regulations, Section 208.18) is an extreme form of cruel and inhuman treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.This does not imply that such "lesser" forms can be committed by governments with impunity. Article 16 of the Convention, for example, imposes on each State Party an obligation to try to prevent such "lesser" forms of cruel treatment, even though they do not rise to the level of torture. But only such severe actions that do rise to the level of "torture" are grounds for preventing deportation under the terms of Article 3 of the Convention.For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture:
the act must cause severe physical or mental pain or suffering; the act must be intentionally inflicted; the act must be inflicted for a proscribed purpose; the act must be inflicted by (or at the instigation of or with the consent or acquiescence of) a public official who has custody of the victim; and the act cannot arise from lawful sanctions.
Matter of J-E
Thus, in the U.S. immigration case of Matter of J-E-, 23 I&N Dec. 291 (BIA 2002)(ID 3466), the indefinite detention of criminal deportees by Haitian authorities did not constitute "torture" where there was no evidence that the authorities intentionally and deliberately detained deportees in order to inflict torture. Likewise, substandard prison conditions in Haiti did not constitute "torture" where there is no evidence that the authorities intentionally created and maintained such conditions in order to inflict torture.J-E was a Haitian who had entered the U.S. illegally and who was later convicted of selling cocaine. The Government sought to deport him, but J-E claimed that he would be imprisoned and tortured if he were returned to Haiti. Therefore, he argued, Article 3 of the Convention prevented his being deported. The Board set out the five-part test for torture and noted that
While the Convention Against Torture makes a clear distinction between torturous and non torturous acts, actually differentiating between acts of torture and other bad acts is not so obvious. Although not binding on the United States, the opinions of other governmental bodies adjudicating torture claims can be instructive.The Board thereupon considered Ireland v. United Kingdom, 2 Eur. Ct. H.R. 25 (1978), where the European Court held that suspected terrorists who were subjected to wall standing, hooding, a constant loud and hissing noise and who were deprived of sleep, food and drink by the British Army were subjected to "inhuman and degrading treatment" but not to "torture."
It was admitted by all parties that J-E would be indefinitely detained upon return to Haiti. Deportees were held by police in holding cells for weeks before release. However, the State Department report (relied upon by all parties) confirmed that the Haitian government used this policy as a warning and a deterrent, to try to prevent deportees from committing crimes in Haiti.
Thus, Haiti's detention policy in itself appears to be a lawful enforcement sanction ... to protect the populace from criminal acts by Haitians who are forced to return to the country after having been convicted of crimes abroad. ... this policy is a lawful sanction and, therefore, does not constitute torture.... [Also] there is no evidence that Haitian authorities are detaining criminal deportees with the specific intent to inflict severe physical or mental pain or suffering. Nor is there evidence that the procedure is inflicted on criminal deportees for a proscribed purpose, such as obtaining information or a confession.... Haiti's detention practice alone does not constitute torture within the meaning of the regulations.
J-E contended that in any case, the combination of indefinite detention with the admittedly substandard conditions of Haitian prison constitute torture. However, the Board noted that the Convention required that "torture" required a "specific intent" by the accused country in order for torture to result:
Although Haitian authorities are intentionally detaining criminal deportees knowing that the detention facilities are substandard, there is no evidence that they are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture. ... the Haitian prison conditions are the result of budgetary and management problems as well as the country's severe economic difficulties.... there is no effective delivery system [for food]... we cannot find that these inexcusable prison conditions constitute torture within the meaning of the regulatory definition.
Finally, J-E maintained that mistreatment was common in Haitian prison and that he would be subjected to such mistreatment, and that constituted torture. The Board found that there was, in Haiti,
Beating with fists, sticks and belts ... by far the most common form of abuse. However [there are] other forms of mistreatment, such as burning with cigarettes, choking, hooding and ... severe boxing of the ears, which can result in eardrum damage.... there were also isolated allegations of electric shock...[and] withholding medical treatment.
The Board considered all the evidence submitted and concluded that it showed that isolated incidents of torture did occur in Haitian detention facilities. However, this evidence was not sufficient to demonstrate that it was more likely than not that J-E would be subjected to torture upon his detention. There was no evidence that the torture was persistent or widespread; or that the Haitian government used torture as a policy; or that there was no meaningful international oversight.The Board noted that the Haitian government cooperated with the Red Cross in delivering aid and allowed a Miami Herald reporter access to the prisons (part of the newspaper story was used by J-E as his evidence in the hearing). Furthermore, the U.S. had urged the Haitian government to discontinue the indefinite detention practice and the President of Haiti had visited jails and had pardoned several women there, due to the awful conditions.
The Board accordingly held—in yet another 7-6 opinion with substantial dissenting opinions—that J-E had failed to carry his burden of showing that the admitted mistreatment was so pervasive that it therefore was more likely than not that he would be tortured in a Haitian jail, as opposed to being subjected to cruel and inhuman acts that, while despicable, were less than torture within the meaning of the applicable law. Most of the actions reported against Haiti, the Board decided, were sanctioned under Article 16 of the Convention as acts that were "cruel and inhuman" and that State Parties were obliged to correct, but nevertheless did not constitute "torture" within the meaning of Article 1 of the Convention.
J-E's appeal to the BIA was therefore dismissed and the deportation order remained in effect.
See also
- Amnesty lawAmnesty lawAn amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...
- At the Center of the Storm: My Years at the CIAAt the Center of the Storm: My Years at the CIAAt the Center of the Storm: My Years at the CIA is a memoir co-written by former Director of the Central Intelligence Agency George Tenet with Bill Harlow, former CIA Director of Public Affairs...
(book by former CIA head George TenetGeorge TenetGeorge John Tenet was the Director of Central Intelligence for the United States Central Intelligence Agency, and is Distinguished Professor in the Practice of Diplomacy at Georgetown University....
) - Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Enhanced interrogation techniquesEnhanced interrogation techniquesEnhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, often described as torture...
- Human experimentation in the United StatesHuman experimentation in the United StatesThere have been numerous experiments performed on human test subjects in the United States that have been considered unethical, and were often performed illegally, without the knowledge, consent, or informed consent of the test subjects....
- Human rights in the United StatesHuman rights in the United StatesHuman rights in the United States are legally protected by the Constitution of the United States and amendments, conferred by treaty, and enacted legislatively through Congress, state legislatures, and plebiscites...
- Human Rights Record of the United StatesHuman Rights Record of the United States.The Human Rights Record of the United States is a publication on the annual human rights record in the United States of America, published by the Information Office of the State Council of the People's Republic of China...
- International humanitarian lawInternational humanitarian lawInternational humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...
- Lexical definitionLexical definitionThe lexical definition of a term, also known as the dictionary definition, is the meaning of the term in common usage. As its other name implies, this is the sort of definition one is likely to find in the dictionary...
- Precising definitionPrecising definitionA precising definition is a definition that extends the lexical definition of a term for a specific purpose by including additional criteria that narrow down the set of things meeting the definition....
- Tramp chairTramp chairThe tramp chair was a one-person retaining device used by American police, largely during the 19th century, as a mild form of torture and public humiliation....
, 19th century torture device - United States and state terrorism
- Universal jurisdictionUniversal jurisdictionUniversal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
- U.S. Army and CIA interrogation manuals
- Uses of torture in recent timesUses of torture in recent timesTorture, the infliction of severe physical or psychological pain upon an individual to extract information or a confession, or as an illicit extrajudicial punishment, is prohibited by international law and is illegal in most countries. However, it is still used by many governments...
- United States war crimes
Further reading
- Cecilia Menjivar, Nestor Rodriguez (eds.): When States Kill: Latin America, the U.S., and Technologies of Terror, Austin: Texas University Press, 2005
- Alfred W. McCoy: A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror, Henry Holt, 2006, ISBN 0-8050-8041-4
- Kristian Williams, American methods: torture and the logic of domination, South End Press, 2006, ISBN 0896087530
External links
- Four memos on torture, released April 16, 2009 in response to a Freedom of Information Act law suit
- Senate Armed Forces Committee Report on Torture, released April 22, 2009
- Periodic reports of the United States to the Committee Against Torture (CAT)
- Warrant to Torture?: A Critique of Dershowitz and Levinson, ACDIS Occasional Paper by Jonathan Allen, published by the Program in Arms Control, Disarmament, and International Security (ACDIS), University of Illinois, 2005
- Convention Status
- Newsweek: Inspector General Report Reveals CIA Conducted Mock Executions - video report by Democracy Now!Democracy Now!Democracy Now! and its staff have received several journalism awards, including the Gracie Award from American Women in Radio & Television; the George Polk Award for its 1998 radio documentary Drilling and Killing: Chevron and Nigeria's Oil Dictatorship, on the Chevron Corporation and the deaths of...
- 'The Past is a Foreign Country?' Obama and the Torture Files by Alexandra Barahona de Brito, Opinion, May 2009 European Union Institute for Security StudiesEuropean Union Institute for Security StudiesThe European Union Institute for Security Studies is a Paris-based EU agency of the Common Foreign and Security Policy . Its goals are to find a common security culture for the EU, to help develop and project the CFSP, and to enrich Europe’s strategic debate.The EUISS is an autonomous agency with...
- Human Rights First; Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects (2008)
- Human Rights First; Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality