Civil rights groups are accusing the U.S. government
of failing to admit the extent to which abuse of non-citizens in U.S. custody
in Afghanistan, Iraq, and its base at Guantanamo Bay, Cuba, violates the international
treaty against torture.
At issue is a report
submitted by the U.S. State Department, or foreign ministry, to the UN Committee
Against Torture, an international panel that reviews whether signatories are
following their treaty obligations under the Convention Against Torture. The
committee is expected to review the report, submitted this month, when it next
meets in November.
The torture convention, which the United States and 139 other countries have
ratified, prohibits "cruel, inhuman, or degrading treatment or punishment."
The U.S. report reaffirms Washington's opposition to torture and says "the
United States is fully aware of allegations that U.S. military or intelligence
personnel have subjected detainees in various locations to torture."
But rights advocates including Human Rights Watch
as well as smaller U.S. groups said the document fails to mention cases of "ghost
detainees," or prisoners held by U.S. officials incommunicado and in secret.
Further, it does not acknowledge that degrading treatment of prisoners held
abroad and the "rendition," or export, of suspected terrorists to
countries with reputations for torture, are prohibited by the treaty, according
to the activists.
Thus, said Human Rights Watch U.S. program director Jamie Fellner, Washington's
position remains vague on whether U.S. actions are governed by the torture convention
or by the U.S. Constitution, and
on whether the constitution's protections apply to non-citizens held abroad.
Bob Harris, a legal expert for the State Department, declined to comment on
the complaints or to clarify the U.S. position other than to say it is described
in the report.
Activists said they had sought Washington's clarification on these points,
to no avail. In turn, they have been left to theorize about possible legal explanations
as to why U.S. officials have been vague about their position and in some instances
have argued that abuses abroad are not violations.
According to the group Human
Rights First, when the United States ratified the torture convention in
1994, it expressed a reservation, as the UN permits, to Article 16 of the treaty.
This section of the pact calls on each member state to prevent, in any territory
under its control, cruel, inhuman, or degrading treatment or punishment by any
person acting "in official capacity."
Through this reservation, the U.S. has the right to ignore any part of Article
16 that is not covered by the U.S. Constitution.
In exercising the option, U.S. officials were "hedging their bets," building
in a safety valve to release pressure should Washington be accused of violating
the torture convention, said Human Rights First spokesperson Preeti Patel.
U.S. Attorney General Alberto Gonzales has used that valve, she said.
"Gonzales, in his confirmation hearing, said that Article 16 doesn't apply
to non-citizens being held abroad," Patel said.
This is "a new interpretation of the reservation which was never used before,"
Fellner, at Human Rights Watch, told IPS.
Fellner said Gonzales' interpretation runs counter to the original intent of
the U.S. reservation.
"The reason for the reservation," she said, was that, "the U.S. didn't want
conduct that was permitted under the constitution to become impermissible under
the international treaty."
Fellner challenged Gonzales' interpretation, saying that the torture convention
applies to conduct regardless of location.
However, Washington appears to insist that the U.S. Constitution applies, and
not the convention, legal experts said. Yet here, too, ambiguity abounds.
"The Supreme Court has never definitively decided what parts of the constitution
apply to non-citizens abroad," said Jenny Martinez, a professor at the Stanford
Law School in California.
The Constitution's 5th, 8th and 14th amendments prohibit "cruel and unusual"
treatment of prisoners and illegal detentions, and protect their right to due
process, but they do not explicitly state whether they apply overseas.
Then again, they do not say that their protections apply only to U.S. citizens
and this should be interpreted as meaning they apply to everyone, said Ann Ginger,
executive director of the Meiklejohn
Civil Liberties Institute, a California-based advocacy group.
Gonzales' interpretation of the reservation, Ginger said, boils down to this:
"that if the U.S. Supreme Court has not said that a certain action violates
the U.S. Constitution, even if it violates the torture convention, then they're
not going to report on it and it doesn't apply."
President George W. Bush, in an International Day in Support of Victims of
Torture speech last June, said that "torture is wrong no matter where it
occurs and the United States will continue to lead the fight to eliminate it