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January-February 2011

Vol. 36, No. 1

Torture: Step in right direction but long way to go

In early November, Assistant Secretary of State Esther Brimmer presented the first-ever U.S. Universal Periodic Review report to the United Nations Human Rights Council. In introducing the U.S. delegation, comprised of senior officials from 11 U.S. departments and agencies, a representative of U.S. local authorities, and two advisers from civil society groups, Brimmer said, “Their participation reflects the depth of our commitment to human rights at home, which spans the federal government as well as state, local, and tribal governments across our country, and which is complemented by the deep commitment from President Obama and Secretary Clinton to multilateral engagement, human rights, and the rule of law.”

The Obama administration has been deeply disappointing in its inability to honor its commitment, for example, to close the U.S. detention facility at Guantanamo Bay, Cuba, and in its refusal to prosecute high level U.S. officials responsible for torture and other violations of international law, but U.S. participation in the Universal Periodic Review process was nonetheless important.

Each member country of the United Nations is required to report on its human rights situation to the Human Rights Council and then to be questioned, challenged, and applauded by other nations. According to Brimmer, the State Department, Homeland Security, Department of Defense, Department of Justice, Health and Human Services and the Department of the Interior prepared the report by holding hearings across the U.S. about the U.S. human rights record. The 29-page report included a wide range of concerns, from racial profiling and immigration to torture and homelessness.

Discussion that followed presentation of the report covered issues from the death penalty to human trafficking. Brimmer wrote, “We did not shrink from criticism either from governments, including those that have no credibility when it comes to their own poor human rights records, or our own civil society. The issues of torture and detention were very much front and center.  Many delegations urged the prompt closure of the Guantanamo Bay detention facility…”

Unfortunately, that seems less and less likely. On December 22, the Senate included a provision in the National Defense Authorization Act to eliminate the possibility of trying Guantanamo detainees in U.S. federal courts. The new provision completely strips the government of the federal court option until September 2011 or until a new authorization bill is passed, effectively blocking closure of the Guantanamo detention facilities in the near future. The House of Representatives passed a similar provision on December 17. Human Rights Watch (HRW) Washington director Tom Malinowski said, “By hindering the prosecution of Guantanamo detainees in federal court, Congress has denied the president the only legally sustainable and globally legitimate means to incarcerate terrorists… If the Congress has its way, detainees are now just going to sit in Guantanamo indefinitely, and as evidence grows stale, prosecution down the road is only going to become more difficult.”

According to HRW, the bill also contains new rules requiring that, prior to transferring a detainee even to his home country, the U.S. must certify certain factors exist related to that country’s ability to monitor and control the detainee and its past experience with terrorism. With more than half of the remaining Guantanamo detainees from Yemen and others from places like Saudi Arabia and Pakistan, it may be extremely difficult for the administration to certify these factors exist. As a result, detainees who have already been cleared for release, some of whom have been held for more than eight years, may continue to be held indefinitely in violation of U.S. obligations under international law.

The new rules also prevent the transfer of a detainee to a country if there are any recorded cases of “confirmed recidivism,” which is not defined. While U.S. government reports claim rates of recidivism among released Guantanamo detainees as high as 25 percent, these reports have been soundly discredited by academics and experts who have closely analyzed the figures and cross-referenced them with publicly available information. The U.S. government has never released a list of names of alleged recidivists or details of their alleged conduct.

Currently, 174 detainees are imprisoned at Guantanamo, which entered its tenth year of operation on January 11. The Obama administration has indicated that it intends to hold 48 of those detainees without trial under purported laws-of-war-detention and prosecute another 36. It has cleared for transfer the remaining 90 detainees.

On January 11, to keep pressure on the Obama administration to close Guantanamo and hold to account those who designed and carried out torture policies, Witness Against Torture launched a daily vigil and fast that continued for 11 days and included demonstrations throughout Washington, D.C. The days of action began with a rally and “prisoner procession” to the Department of Justice, where members of Witness Against Torture engaged in nonviolent direct action.

Witness Against Torture is also focusing attention on Bagram and other U.S.-administered prisons in Afghanistan, where the administration has intensified military operations.

The National Religious Campaign Against Torture (NRCAT), of which the Maryknoll Office for Global Concerns is a member, is calling for an independent commission of inquiry into the acts of torture committed by the United States since September 11, 2001. From this, it hopes recommendations and safeguards will be made to ensure that torture ends for good. Second, it is advocating for administrative changes, including an expansion of criminal investigations for those who allowed torture to happen, removing Appendix M from the Army Field Manual which allows for prolonged isolation, sleep deprivation and sensory deprivation, and closing Guantanamo Bay. Third, NRCAT is advocating for important provisions, such as videotaping interrogations, transferring inmates to other countries and allowing the International Committee of the Red Cross access to detainees, to be made into an anti-torture law.

On the domestic level, NRCAT is working to pass the Prison Abuse Remedies Act which would make it easier for prison inmates to sue when they have been tortured, or physically or sexually abused. NRCAT is also pushing to pass the National Criminal Justice Commission Act that would create a bi-partisan panel to review all aspects of the U.S. criminal justice system and could make recommendations for ending torture in U.S. prisons.

On the international level, NRCAT is working to ratify the Optional Protocol to the Convention Against Torture (OPCAT), which ensures that torture does not happen in places where other anti-torture treaties do not protect, such as prisons, psychiatric facilities and immigrant detention centers. NRCAT is also creating a “torture watch list” to keep an eye on countries that allow torture, and is promoting legislation that would offer incentives to other countries working to end torture.

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