06 May Bellinger Appears Before UN Committee Against Torture
06.05.06
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State Department Legal Advisor John Bellinger appeared before the U.N. Committee Against Torture in Geneva to discuss the U.S. policy and practice as it relates to torture. A transcript of Bellinger’s remarks is not yet available. An eleven page questionnaire presented by the Committee Against Torture is available here. Some of the questions are extraordinarily interesting and, to the best of my knowledge, have not been the focus of sufficient public attention (e.g., Question 3: Explain the substantive reasons why the August 2002 torture memos were replaced with the December 2004 torture memos?; Question 23: Are the terms of the Convention applicable to government contractors?)
Depending on who is doing the reporting, the United Nations either “grilled”, “quizzed”, “questioned”, or “reviewed” the United States record on torture. And depending on who is doing the reporting, the United States either “denied”, “defended”, “explained” or “presented” its treatment of detainees. Guess which newspapers used which words? Continue reading for the answer.
Depending on who is doing the reporting, the United Nations either “grilled”, “quizzed”, “questioned”, or “reviewed” the United States record on torture. And depending on who is doing the reporting, the United States either “denied”, “defended”, “explained” or “presented” its treatment of detainees. Guess which newspapers used which words? Continue reading for the answer.
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I wholeheartedly agree that ‘[s]ome of the questions are extraordinarily interesting and…have not been the focus of sufficient public attention.’
I also think we might benefit from going behind the headlines in search of the possible reasons that motivated the Committee Against Torture’s questionnaire in the first place. Among possible reasons, we might cite the following summaries from data available at Human Rights Watch (hrw.org):
List of “Ghost Prisoners” Possibly in CIA Custody
List of Detainees Published by Human Rights Watch
November 30, 2005 Background Briefing
The following is a list of persons believed to be in U.S. custody as “ghost detainees” — detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.
Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. (One of the listed, No. 25, Ahmed Khalfan Ghailani, was indicted in U.S. federal court for his role in the 1998 attacks.) Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.
The current location of these prisoners is unknown. [….]
U.S. Detainees Disappeared into Secret Prisons: Illegal under Domestic and International Law
December 9, 2005
The United States is holding an unknown number of terrorism suspects in secret overseas locations, and refusing either to acknowledge the detentions or to give information on the fate or the whereabouts of these detainees. These detainees have been held incommunicado, without trial, some for as many as four years. Some of the detainees are reported to have been tortured in custody.
Several reports indicate that the CIA has held detainees in secret facilities in Eastern Europe, with Poland and Romania named as possible locations. While refusing to directly address the existence of such detention centers, the U.S. asserts that its actions are consistent with its obligations under international law. Meanwhile, the Council of Europe and a number of European states have launched investigations into the allegations of violations of international and domestic laws. [….]
By the Numbers:
Findings of the Detainee Abuse and Accountability Project
This 27-page report presents findings of the Detainee Abuse and Accountability Project, a joint project of New York University’s Center for Human Rights and Global Justice, Human Rights Watch and Human Rights First. The project is the first comprehensive accounting of credible allegations of torture and abuse in U.S. custody in Iraq, Afghanistan and Guantánamo.
HRW Index No.: G1802
April 26, 2006 Report
Two years ago, revelations about the abuse of detainees in U.S. custody at Abu Ghraib prison in Iraq shocked people across the world. In response, U.S. government officials condemned the conduct as illegal and assured the world that perpetrators would be held accountable.
Two years later, it has become clear that the problem of torture and other abuse by U.S. personnel abroad was far more pervasive than the Abu Ghraib photos revealed—extending to numerous U.S. detention facilities in Afghanistan, Iraq, and at Guantánamo Bay, and including hundreds of incidents of abuse. Yet an analysis of alleged abuse cases shows that promises of transparency, investigation, and appropriate punishment for those responsible remain unfulfilled. U.S. authorities have failed to investigate many allegations, or have investigated them inadequately. And numerous personnel implicated in abuses have not been prosecuted or punished.
In order to collect and analyze allegations of abuse of detainees in U.S. custody in Afghanistan, Iraq, and at the Guantánamo Bay detention facility, and to assess what actions, if any, the U.S. government has taken in response to credible allegations, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Human Rights First have jointly undertaken a Detainee Abuse and Accountability Project (DAA Project). The Project tracks abuse allegations and records investigations, disciplinary measures, or criminal prosecutions that are linked to them. (This briefing paper does not discuss allegations of torture or abuse at secret U.S. detention facilities in other countries, or allegations of torture following illegal rendition or other informal transfer to other countries.1)
This briefing paper presents the Project’s preliminary conclusions based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate the following key findings:
Detainee abuse has been widespread. The DAA Project has documented over 330 cases in which U.S. military and civilian personnel are credibly alleged to have abused or killed detainees. These cases involve more than 600 U.S. personnel and over 460 detainees. Allegations have come from U.S. facilities throughout Afghanistan, Iraq and at Guantánamo Bay. (These numbers are conservative and likely lower than the actual number of credible allegations of abuse. See box, “Methodology and Sources of Information,” opposite.)
Only fifty-four military personnel—a fraction of the more than 600 U.S. personnel implicated in detainee abuse cases—are known to have been convicted by court-martial; forty of these individuals have been sentenced to prison time.
Available evidence indicates that U.S. military and civilian agencies do not appear to have adequately investigated numerous cases of alleged torture and other mistreatment. Of the hundreds of allegations of abuse collected by the DAA Project, only about half appear to have been properly investigated. In numerous cases, military investigators appear to have closed investigations prematurely or to have delayed their resolution. In many cases, the military has simply failed to open investigations, even in cases where credible allegations have been made.
DAA Project researchers found over 400 personnel have been implicated in cases investigated by military or civilian authorities, but only about a third of them have faced any kind of disciplinary or criminal action. And even in cases where U.S. military investigations have substantiated abuse, military commanders have often chosen to proceed with weaker non-judicial forms of disciplinary action instead of criminal prosecution.
In cases where courts-martial have convened, only a small number of convictions have resulted in significant prison time. Many sentences have been for less than a year, even in cases involving serious abuse. Of the hundreds of personnel implicated in detainee abuse, only ten people have been sentenced to a year or more in prison.
No U.S. military officer has been held accountable for criminal acts committed by subordinates under the doctrine of command responsibility. That doctrine provides that a superior is responsible for the criminal acts of subordinates if the superior knew or should have known that the crimes were being committed and failed to take steps to prevent them or to punish the perpetrators. Only three officers have been convicted by court-martial for detainee abuse; in all three instances, they were convicted for abuses in which they directly participated, not for their responsibility as commanders.
The U.S. Central Intelligence Agency (CIA) has investigated several cases of abuse involving its personnel, and reportedly referred some individuals to the Department of Justice for prosecution. But few cases have been robustly investigated.
The Department of Justice appears to have taken little action in regard to the approximately twenty civilians, including CIA agents, referred for criminal prosecution for detainee abuse by the military and the CIA, and has shown minimal initiative in conducting its own investigations into abuse cases. The Department of Justice has not indicted a single CIA agent for abusing detainees; it has indicted only one civilian contractor. [….]
The following corrects the editing error above from the first report by Human Rights Watch:
‘Human Rights Watch does not consider this list to be complete: there are likely other “ghost detainees” held by the United States. Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law.’