UN Scrutinizes Obama Administration’s Policies on Torture

(Photo: Debra Sweet)Chicago Protest Against Guantanamo Jan 11, 2012. (Photo: Debra Sweet)

This week, as the United States “celebrates” Veterans Day, President Obama has sent a delegation to appear before the United Nations Committee Against Torture (CAT) in Geneva. This is the second time since 9/11 and the so-called “war on terror” began that a US delegation appears before the independent experts who review states’ implementation of and compliance with the Convention Against Torture, Inhuman and Degrading Treatment or Punishment, a treaty to which the United States became a party 20 years ago.

This will be the first time the US record is reviewed since Obama took office in 2009, and much is at stake. The session provides an opportunity for the Obama administration to take a firm stance on reversing a number of the Bush administration’s egregious “war on terror” policies that grossly violate human rights and erode the rule of law. Or, the world will watch to see whether such practices have been further entrenched.

On November 11, NGOs addressed the CAT in a private session discussing the United States’ numerous failures to live up to its legal obligations under the torture convention. Such issues were highlighted in more than 60 NGO shadow reports submitted by the American Civil Liberties Union (ACLU), Amnesty International, Human Rights Watch, the Center for Constitutional Rights and many others.

Murat Kurnaz, a former Guantánamo Bay detainee who was tortured by the United States while in detention in Kandahar, Afghanistan, then in Guantánamo Bay for a total of five years, took the opportunity to address the committee about the abhorrent conditions of his imprisonment:

Good afternoon. My name is Murat Kurnaz. I am a Turkish citizen who was born and raised in Bremen, Germany, where I currently live. I spent five years of my life in detention in Kandahar and Guantánamo Bay from 2001-2006.

My story is like many others. In 2001, while traveling in Pakistan, I was arrested by Pakistani police and sold to the U.S. military for a $3,000 bounty. In Kandahar, the U.S. military subjected me to electric shocks, stress positions, simulated drowning, and endless beatings. In Guantánamo, there was also psychological torture – I was stripped of my humanity, treated like an animal, isolated from the rest of the world, and did not know if I would ever be released.

Even though my lawyers proved that the U.S. knew of my innocence by 2002, I was not released until 2006. I lost five years of my life in Guantánamo.

Eight years later, I cannot believe that Guantánamo is still open and that there are almost 150 men detained there indefinitely. My time in Guantánamo was a nightmare, but I sometimes consider myself lucky. I know that part of the reason I am free today is because I am from Germany.

Most of the current prisoners remain in Guantánamo because they are from Yemen and the U.S. refuses to send them home. Many are as innocent as I was. But they are enduring the torture of Guantánamo for over 12 years because of their nationality, not because of anything they have done.

I understand that international human rights laws like the Convention Against Torture were created so that the people who commit torture are punished. Isn’t that how we can end torture in the world? So why has no U.S. official been held responsible for brutal practices and torture at Guantánamo or other U.S. prisons?

I will never get five years of my life back, but for me and others, it is important that the Committee confronts the United States about its actions in Guantánamo and other prisons.

Thank you.

In the face of this statement, this afternoon, November 12, the US delegation, comprised of approximately 30 top US officials from the Department of Defense, Department of Justice, State Department and UN mission, presented its opening remarks followed by a questioning period from the committee. US officials opened the floor touting the United States’ improved record to oppose torture, as being “proud of its record as a leader in respecting, promoting and defending human rights and the rule of law, both at home and around the world,” and that “opposition to torture is a fundamental American value” – despite the fact that Obama went on the record a few months ago admitting “we tortured some folks.”

The US address merely touched upon a number of highly anticipated issues, such as the release of the Senate Intelligence Committee torture report, which acting legal advisor Mary McLeod claims will be released in due time with appropriate redactions to protect national security. No further explanation was provided as to its release date or the extensions.

Furthermore, the international community and civil society have repeatedly called upon the Obama administration to take an unequivocal position on the convention’s applicability extraterritorially, since the Bush administration claimed the convention did not extend beyond the borders of the United States and is not applicable at all times. Thus, despite the fact that torture is universally prohibited, in times of both peace and war, under the US position those held under the jurisdiction of the United States are not protected from the use of enhanced interrogation techniques (i.e. torture) if held outside US borders.

While US officials repeatedly claimed that the United States clearly and categorically prohibits torture, the US report to the committee submits that it will not take a legal position on the territorial issue, while on November 12, officials admitted that the protections of the convention extend to those detained in Guantánamo Bay and to US registered ships and aircraft. This leaves open the question of treatment of those prisoners currently held in Bagram and other detention facilities or black sites operated by the United States outside its borders.

As talks were underway in Geneva, the White House issued a statement clarifying its delegation’s position, which it claims reverses the Bush administration’s position. However, reading between the lines, the statement seems to specify only certain cases to which geographical limitations no longer apply. As noted by CAT expert Alessio Bruni, an absolute prohibition to torture has no geographical limitations and the United States must provide an absolute prohibition that extends beyond its borders, with no exception.

CAT experts highlighted a number of other outstanding issues related to US compliance with its obligations under the treaty. The US Detainee Treatment Act contains various loopholes, which the Obama administration has not addressed, including methods used for interrogation techniques and whether they are in conformity with the standards of the convention. The Detainee Treatment Act also says nothing about delegating the use of torture to non-US officials nor about the practice of extraordinary rendition – the apprehension and extrajudicial transfer of persons suspected of terrorism from one country to another, often to secret black sites.

Executive Order 13491, which was put in place by President Obama in January 2009, prohibits the use of any interrogation technique not authorized by and listed in the Army Field Manual. However, this order contains a number of legal loopholes, allowing for interrogation techniques, which could amount to torture or ill-treatment, while also granting the CIA authority to operate detention facilities for “short-term” or “transitory” purposes, without any specification as to the meaning or parameters of such terms.

A number of issues, such as the concrete steps to close Guantánamo Bay and the use of fundamentally flawed military commissions, indefinite and arbitrary detention, excessive use of force and police brutality, solitary confinement, the death penalty, accountability for those who have participated in torture and many other domestic and international concerns will go on the record when the US delegation provides its official response to the CAT on November 13. As the world watches, let us hope that the United States provides concrete steps to redress the gross abuses endured by Murat Kurnaz and others like him, ensuring transparency and accountability for those responsible for such abhorrent and inconceivable violations.

In the words of a letter written to President Obama by 12 Nobel laureates:

In recent decades, by accepting the flagrant use of torture and other violations of international law in the name of combating terrorism, American leaders have eroded the very freedoms and rights that generations of their young gave their lives to defend. We will watch in the coming weeks as the . . . findings on the United States torture program brings the country to a crossroads. It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being.

Let us hope it is the latter path.