United States

Background Information

The United States of America is one of the world’s oldest continuous democracies. Dating back to its establishment as a federal republic in 1787, the basic political institutions of the country have remained relatively unchanged at their core. The President, bicameral Congress and Supreme Court are each vested with a certain amount of federal power thereby keeping institutional checks on one another. Today, the United States possesses a highly advanced security apparatus, the ability to effect policies around the globe and the largest economy of any state in the world, valued at over $14 trillion¹. Additionally, the United States is considered the 4th most advance state in the world by the United Nation’s Human Development Index (HDI)². Given the prominence of the United States in today’s world it is paramount to ascertain its support if the international community wishes to achieve substantive global changes in the areas of human rights, climate change and international security, to name but a few.

The US has employed its numerous resources described above to launch a ‘Global War on Terror’ under the administration of George W. Bush following the heinous attacks of September 11th. Merely a month after 9/11 Afghanistan was invaded and occupied for harboring terrorists under the Taliban’s regime. Two years later in 2003, Iraq was invaded based on the theory, now largely discredited, that the regime was in possession of weapons of mass destruction. International support for the ‘Global War on Terror’ has steadily declined since 2001 coinciding with various human rights abuses by the United States and its allies that have come to light in the years following the start of the war. Among these various abuses none loom larger than the use of torture, or as the Bush administration euphemistically coined it, “enhanced interrogation techniques”³.

The United States has been criticized for violating international laws prohibiting torture on several occasions in its ‘War on Terror’. Perhaps the most famous example of these is the Abu Ghraib prison scandal where US military personnel were photographed beating, raping, humiliating and otherwise abusing Iraqi prisoners⁴. Furthermore, the now infamous Guantánamo Bay prison facility in Cuba has housed hundreds of suspected terrorists as “unlawful enemy combatants” so as to circumvent the legal protections bestowed to prisoners of war⁵. The US has freely admitted to using interrogation techniques, which are internationally considered as torture, on these “unlawful enemy combatants”⁶. One such infamous tactic that has provoked large international reactions because of its repeated use is waterboarding, an interrogation method whereby the face of the interrogated person, which is covered by a cloth, is repeatedly subjected to a flow of water so as to simulate drowning.

In 2008, the United States elected its first African-American president, Barack Obama, and seemed poised to undo much of the harm done to its reputation. Objectively, much of the promised change in the human rights field has yet to materialize but several critical steps have been taken towards the goal of compliance to international human rights laws. For instance, the Obama administration has banned the use of enhanced interrogation techniques such as waterboarding and has promised to close the infamous Guantánmo Bay Detention Center. However, the administration has yet to actualise some of these promises as seen by the continued use of Guantánmo Bay, which, despite the commitment of President Obama, the administration has not been able to shut down. The main reasons invoked seem to be the constant opposition of the Congress to it, and the difficult relocation of some of the detainees, at threat to be tortured in their countries of origin, to third countries. Furthermore, none of the officials responsible for the United States’ policies during the ‘War on Terror’ have yet been brought to court to answer for their acts, including violations to the prohibition of torture.

Situation of Torture and Ill-Treatment

Legal Framework

The United States is State Party to several international treaties including CAT and ICCPR. However, it has not ratified any of their optional protocols. The United States has also made several declarations and reservations to CAT. In 1994, the United States transmitted a communication to the Secretary-General that made clear 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 States⁷.” Individual complaints as formulated in Art 22 CAT have not been accepted by the United States. The United States has also made a declaration that it does not consider CAT to restrict or prohibit the United States from applying the death penalty.

On a national level, the 8th amendment to the Constitution prohibits “cruel and unusual punishment”⁸. In addition to that, Title 18 §2340 of the United States Code Collection defines “torture” as “…an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain and suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;”. According to §2340A. anyone who committs or attempts to committ torture shall be fined with up to 20 years imprisonment. If the action described in §2340 leads to the death of a person, the perpetrator may face life imprisonment or even the death penalty. Both provisions, however, limit federal criminal jurisdiction over acts of torture to extraterritorial cases⁹. Thus, the Committee against Torture in 2006 recommended to the United States to implement a definition of torture in federal law in line with Art 1 CAT. The Committee also expressed concern about the State Party’s opinion that the provisions of the Convention are not applicable in times of armed conflict.

Provisions related to torture can also be found in Title 28 Torture Victim Protection Act of 1991 in §1350 Section 3 and in Title 8 Code of Federal Regulations §208.18 (Implementation of CAT).

The United States does not have a national human rights institution accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights and in accordance with the Paris Principles.

Practice of Torture and Ill-Treatment

The United States has adopted repeatedly a highly disputable position in terms of its approach to human rights. In particular, since the start of its ‘War on Terror’ after 9/11, numerous incidents of torture, ill-treatment and other serious human rights violations have been exposed.

Extraordinary Rendition:

Since the beginning of its Global War on Terror, the United States has received harsh criticizm for its “extraordinary rendition” programme. The C.I.A., with approval of the government, has brought hundreds of foreign detainees and suspected terrorists to various countries around the world to interrogate them or have them interrogated by the respective country’s secret service in secret prisons (“black sites”). The detainees were held incommunicado for prolonged times and often were tortured in order to obtain information.

Soon after 9/11, a series of legal memoranda were drafted by legal counsels in the White House which advised the Bush adminstration on how to circumvent international law restraints, especially the Geneva Conventions, when dealing with suspected al-Qaida terrorists. The reinterpretation of the Geneva Conventions paved the way for a strategy of systematic violations of human rights during interrogations of detainees. The Obama administration has continued the practice of rendition, at the same time stressing that it will closely monitor the treatment of such detainees to ensure that they are not tortured¹⁰. Countries involved in the extraordinary rendition programme have been amongst others Egypt, Afghanistan, Pakistan, Jordan, Syria, Morocco, Poland and Lithuania.

Reports of abuse and torture at Bagram Prison in Afghanistan have made constant waves throughout the last ten years. According to military prosecutor Stuart Couch, who had access to both Bagram and Guantánamo Bay, “the Bagram facility made Guantanamo look like a nice hotel”¹¹ during the Bush administration. Former detainees reported sleep deprivation, beatings and sexual humiliation¹². In 2009, the United States has begun with the transfer of prisoners to the newly built Parwan Detention Center, near Bagram, which now holds 2,600 prisoners, but the hand-over of the facility to Afghan authorities will be delayed at least until 2014. Prisoners at Parwan, in contrast to detainees at Guantánamo Bay, are not allowed to be represented by a lawyer. There are also rumours about the existence of a second “secret” jail (“Tor Jail”) near the Parwan Detention Center.

Guantánamo Bay:

Guantánamo Bay in Cuba has been used to detain suspected terrorists after the attacks of 9/11. As mentioned before, detainees were subjected to “enhanced interrogation techniques”. Documented methods of torture include shackling to the floor, subjection to extreme temperatures, deafening noise and debasement of religious symbols¹³.

In June 2004, in the context of a UN Joint Study on Guantánamo Bay¹⁴, the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on Torture, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health requested the United States to allow them to visit Guantánamo Bay, but in the absence of assurances from the Government that it would comply with the terms of reference, the five mandate holders decided to cancel the visit in November 2005¹⁵.

The attempt to try the “unlawful enemy combatants” before military courts experienced several setbacks due to Supreme Court rulings. Initially, the Bush administration successfully argued that the detainees were in a legal black hole, without any right of access to the federal courts to challenge whether they were unlawfully held¹⁶. That practice was maintained in spite of a ruling by the Supreme Court (Rasul v. Bush, 542 U.S. 466 (2004)) that detainees at Guantánamo Bay may file a habeas corpus case to challenge the lawfulness of their detention. The Military Commissions Act (MCA) in 2006 was introduced to deny “enemy combatants” the right to habeas corpus. In 2008, a landmark ruling in Boumediene v. Bush, 553 U.S. 723 (2008), declared the MCA unconstitutional.

However, the promise of President Obama to try suspected terrorists before civil courts faded due to the pressure of the Congress, after Ahmed Khalfan Ghailani, involved in the 1998 attacks on US embassies in East Africa, was convicted in only one of 285 charges because the information of the main witness is believed to have been obtained under torture. In March 2011, President Obama reversed his decision and military trials have resumed, although in a revised version.

Around 170 suspected terrorists continue to be held in Guantánamo Bay, many of them labelled as a “high risk” for the United States. Of the 600 released detainees, the majority was never charged with any crime. Much of the information on Guantánamo Bay and the invasions of Afghanistan and Iraq was uncovered by the whistleblower site Wikileaks which published thousands of classified documents and led to a world-wide uproar.

Compensation:

So far, and in contrast to the United Kingdom, not a single victim of torture by authorities of the United States has received any compensation for the torments experienced. In most of the cases, the plaintiffs lawsuit has been dismissed due to the so-called “states secret privilege” which allows the government to shut down litigation simply by invoking national security¹⁷. The “states secret privilege” was first acknowledged by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953). Although it was later revealed that the possible revealance of military secrets was only used to cover up government misconduct, the Supreme Court has retained its position. A recent case of confirmation of the “states secret privilege” was Mohamed et al. v. Jeppesen Dataplan, Inc. (No. 08-15693, 2011).

Conditions of Detention:

The United States is the country with the highest prison population rate in the world, with 743 prisoners on 100,000 of the national population¹⁸. There has been a steady growth in incarceration and the prison population exceeds 2.3 million¹⁹ which results in overcrowding in many detention facilities across the country. One telling example is a ruling in which the Supreme Court clarified that conditions in California’s overcrowded prisons are so bad that they violate the Eighth Amendment’s ban on cruel and unusual punishment (Brown v. Plata et al., No. 09-1233, 2011).

Besides the negative influence of overcrowding on the existence of adequate space, it increases the vulnerability to sexual abuse. According to a report by Just Detention International, 20% of detainees in men’s prisons are sexually abused at some point during their incarceration. The rate for women’s facilities varies dramatically from one prison to another, with one in four detainees being victimized at the worst institutions²⁰. Since statistics are only scarcely available, the estimated number of unreported cases is believed to be even higher. Particularly vulnerable to sexual assault are the most marginalised members of society: gay, transgender, young, mentally ill, or people incarcerated for the first time²¹. The situation is further aggravated due to the fact that the United States does not recognize the competence of the CAT to receive individual complaints. Thus, victims of abuse cannot file their complaints directly with the CAT.

The United States is also using solitary confinement in state prisons on a regular basis. More than 20,000 detainees are detained in isolated cells with severe restrictions on exercise, exposure to natural light and communication with other prisoners. Solitary confinement is often justified by the authorities to avoid gang activity and inter-prisoner violence. The psychological effects of solitary confinement are well-documented and include: an increased risk to develop psychopathologies, decreased EEG activity, higher risk of self-mutilation and a higher recidivism rate once released²².

¹http://data.un.org/CountryProfile.aspx?crName=United%20State s%20of%20America
²http://hdrstats.undp.org/en/countries/profiles/USA.html
³http://abcnews.go.com/WNT/Investigation/story?id=1322866
⁴http://www.nytimes.com/2004/05/08/politics/08ABUS. html
⁵http://usiraq.procon.org/view.answers.php? questionID=000934.
⁶http://www.nytimes.com/2009/04/17/us/politics/17detain.html
⁷http://www.bayefsky.com/pdf/usa_t2_cat.pdf
⁸http://www.usconstitution.net/const.html#Am8
⁹CAT/C/USA/CO/2 – Conclusions and recommendations of the Committee against Torture, 25 July 2006
¹⁰http://www.nytimes.com/2009/08/25/us/politics/25rendition.html
¹¹http://www.spiegel.de/international/world/0,1518,650242,00.html
¹²http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf
¹³http://www.guardian.co.uk/world/2007/jan/03/guantanamo.usa
¹⁴http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/112/76/PDF/G0611276.pdf?OpenElement
¹⁵A/HRC/WG.6/9/USA/2 – Universal Periodic Review, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1, 12 August 2010
¹⁶http://ccrjustice.org/learn-more/faqs/legal-analysis%3A-boumediene-v.-bush/al-odah-v.-united-states
¹⁷http://topics.nytimes.com/topics/reference/timestopics/subjects/s/state_secrets_privilege/index.html
¹⁸http://www.prisonstudies.org/
¹⁹Pew Center on the States, “One in 100: Behind Bars in America 2008”, 28 February 2008
²⁰Just Detention International – Fact Sheet “The Basics About Sexual Abuse in U.S. Detention”, January 2009
²¹Ibid
²²Solitary Watch, Psychological Effects of Solitary Confinement, June 2011

Sources: http://data.un.org/CountryProfile.aspx; http://www.prisonstudies.org/info/worldbrief/; http://www.time.com/time/politics/article/0,8599,1893023,00.html; http://www.rwi.lu.se/tm/ThemeMaps.html; http://www.bayefsky.com; http://www.worldcoalition.org/Is-the-death-penalty-a-cruel-inhuman-or-degrading-punishment-under-international-law.html; http://www.law.cornell.edu/; http://www.aclu.org; New York Times, http://www.univie.ac.at/bimtor/news/894; http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/gIQApCGMBJ_story.html; http://news.bbc.co.uk/2/hi/8621973.stm

Documents: Nowak/Birk/Crittin - ‘The Obama Administration and Obligations Under the Convention Against Torture’, Transnational Law & Contemporary Problems, a Journal of the University of Iowa College of Law, Volume 20, Number 1, Spring 2011, pp. 33-66; A/HRC/13/42 – UN Joint Study on Global Practices in Relation to Secret Detention, 19 February 2010; E/CN.4/2006/120 – Situation of detainees at Guantánamo Bay, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, 27 February 2006; A/HRC/10/44 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, 14 January 2009; CAT/C/USA/CO/2 – Concluding Observations of the CAT, 25 July 2006; A/HRC/WG.6/9/USA/2 – Universal Periodic Review, Compilation of UN Information, 12 August 2010; Human Rights Watch (2011) Report: “Getting Away With Torture – The Bush Administration and Mistreatment of Detainees”; Just Detention International (2006) Report: “In the Shadows – Sexual Violence in U.S. Detention Facilities”

About Against Torture

News and background information about the situation of torture and ill-treatment worldwide.

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List of Issues

• Systematic Torture
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