Torture, Ill-Treatment, and US Foreign Policy
Join the discussion about Torture, Ill-Treatment, and US Foreign Policy during our online event. Don't miss this opportunity to ask questions online of Professor Aceves, author of the 2002 Amnesty International USA report on torture and impunity in the United States.
Featured Guest: William AcevesFrom our featured guest: "I look forward to answering your questions on June 23rd."
Question Submitted by Dean:
I was raised with the idea that America was the defender of human rights. By what slip of judgement did we fall into this abyss of denial of due process and denial of human rights. We are little better than those we are fighting if we continue down this path.
William Aceves answers:
Dear Dean,
Thank you for your question.
There are so many issues to address with respect to torture and U.S. foreign policy. This is a good place to start.
Inter arma, silent leges. In time of war, the law is silent. Since September 11, 2001, many people in the United States have taken the position that the U.S. government has a responsibility to prevent another terrorist attack at all costs. This is certainly the justification for Guantanamo. And several of the infamous “torture memos” prepared by the Bush Administration support this position. Of course, this is not a uniquely American perspective – governments throughout the world routinely commit human rights abuses in the name of national security.
But international law does not support this position. While international law recognizes that there may be some exceptions (known as derogations) to human rights protections, these exceptions do not apply to the protection of fundamental human rights. For example, the Convention against Torture is quite clear: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” In other words, there is absolutely no circumstance that justifies torture. It is important to recognize that the United States has signed and ratified the Convention against Torture. Under the U.S. Constitution, therefore, this treaty is the supreme law of the land.
The International Covenant on Civil and Political Rights (ICCPR) is equally clear: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” While the ICCPR recognizes a right of derogation from some human rights protections, the right to life provision allows no derogation. Again, the United States has signed and ratified this treaty, which also makes it the supreme law of the land.
Even the laws of war recognize that certain fundamental protections apply to all individuals, even enemy combatants and prisoners of war. For example, the Third Geneva Convention Relative to the Treatment of Prisoners of War prohibits the following grave breaches: “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.” And, once again, the United States has signed and ratified this treaty.
Every country believes that its security situation is unique, and that national security and sovereignty “means never having to say you’re sorry.” But that position is simply not recognized by international law.
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Question Submitted by Michele:
I support amnesty international but in regards to the treatment of the prisoners at Gitmo I disagree that they are being treated badly. Please explain why these prisoners should have the same right and protections as american citizens, after all they are prisoners of war and from what I can tell are being treated really well.
William Aceves answers:
Dear Michele,
This question provides a nice follow-up to the preceding discussion.
First, let’s provide some context. Approximately 520 individuals are held at Guantanamo. They are alleged to be members of the Taliban regime or Al Qaeda members. The number of detainees varies due to the transfer of individuals to Guantanamo and the release of some detainees to their home countries. The detainees include individuals from approximately 40 countries. To date, approximately 234 detainees have been released or transferred.
Some of the released detainees have raised serious charges of abuse. These detainees have reported that they were often subjected to forced standing and kneeling for extended periods of time, sensory deprivation, sleep deprivation, and other forms of physical and mental abuse. Amnesty International and other human rights organizations have chronicled this abuse in various reports.
Now, let’s discuss some of the points raised in your question.
First, the Guantanamo detainees have not been classified as prisoners of war. This is an important point. The Bush administration has specifically declined to designate any of the “Gitmo” detainees as prisoners of war. By doing so, the Bush Administration has sought to preclude the application of the Third Geneva Convention Relative to the Treatment of Prisoners of War to these detainees.
Second, it is difficult to make a definitive determination on how the Guantanamo detainees are being treated because we simply don’t have enough information on what is taking place there. Media access to Guantanamo is severely limited. Nongovernmental organizations such as Amnesty International have been given only limited access. Family members are certainly not allowed to visit detainees.
However, we have some information about detention conditions that provides cause for serious concern. First, the International Committee of the Red Cross (“Red Cross”) has been granted some access to the detainees. Based on these visits, the Red Cross has “observed a worrying deterioration in the psychological health of a large number of [the detainees].” As a result of their continued detention, many detainees now suffer from psychological problems. Not surprisingly, the United States has disclosed that there have been numerous suicide attempts at Guantanamo. Second, detainees who have been released have also described how they were abused. As noted, many of the released detainees have described a consistent pattern of abusive conduct, including physical and mental abuse.
Finally, we have our own observations. The individuals who are held at Guantanamo have been detained without access to counsel, without charge, without any form of substantive or procedural due process, for an indefinite period of time. Some of these individuals have been detained at Guantanamo for over three years and there is no indication when, or if, they will ever be released. (Remember, none of the detainees have been convicted of any crime and only a handful have even been charged.)
Regardless of their living conditions and how they may be treated, international law simply does not accept the permissibility of indefinite detention of this nature.
There is a final point that is worth mentioning. While the United States is bound to comply with the Third Geneva Convention as a duly ratified treaty, there is another reason for why it should comply: reciprocity. If countries fail to respect the fundamental rights of individuals under their control, it makes it easier for other countries (or gropus)to disregard those same protections.
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Question Submitted by SR. MARY JUDE:
When will we hear the truth about this tortue our country is inflicting now and has been for years. will the ones responsibe (at the top) ever be held responsible or will the cover-up continue. thanks.
William Aceves answers:
Dear Sr. Mary Jude,
Last month, Amnesty International issued its 2005 Annual Report on the State of the World’s Human Rights. At the U.S. press conference, AIUSA Executive Director William Schulz noted that the United States must investigate and prosecute all cases of suspected torture and abuse. Here is a weblink to the summary of the Annual Report release:
http://www.amnestyusa.org/news/document.do?id=07B80A8EF728517D8525700C00640EA4
At the press conference, Bill Schulz identified twelve individuals who should be investigated because of their alleged complicity in human rights abuses. These individuals include Attorney General Alberto Gonzales, Secretary of Defense Donald Rumsfeld, Major General Geoffrey Miller, Lt. General Ricardo Sanchez, and former CIA Director George Tenet. While some low-level military personnel have been investigated and prosecuted, there have not been comparable investigations of high ranking military and political leaders.
One of the interesting points raised at the press conference was that the obligation to investigate and prosecute is not limited to the United States. In other words, if the United States is not prepared to investigate and prosecute cases of abuse, then other countries have the right and the obligation to do so. This obligation stems from international law. The Convention against Torture creates a legal obligation on all states to investigate and, where appropriate, to prosecute cases of torture. Significantly, this obligation applies regardless of the victim’s nationality, the perpetrator’s nationality, or where the abuse occurred. (This is known as universal jurisdiction.) The Third Geneva Convention Relative to the Treatment of Prisoners of War contains a similar obligation to investigate and prosecute grave breaches.
Not surprisingly, the Administration did not appreciate these calls for an investigation. They also challenged the assertion made in the Annual Report that Guantanamo represents “the gulag of our times.” Here is a good weblink regarding the Bush Administration’s response to the report: http://www.amnestyusa.org/investigate.html
This week, AIUSA issued a press release supporting a recently proposed bill that would establish an independent commission to investigate detainee abuses in Guantanamo, Iraq, Afghanistan and other locations. According to Jumana Musa, Advocacy Director for Domestic Human Rights and International Justice at Amnesty International USA, “Congress should seize this opportunity to support a comprehensive, transparent and independent investigation into the policies and practices governing treatment of detainees. A thorough examination of the detention centers and interrogation techniques will provide Congress with the information necessary for proper oversight of the treatment of detainees and will be a significant step towards ensuring that all detained individuals are treated in accordance with U.S. and international law.” I believe the Bush administration announced yesterday that it did not support the establishment of an independent commission.
One final point that is worth making. It took over twenty years before the efforts to prosecute Augusto Pinochet were successful (although they are still ongoing). And, the impetus for prosecution did not come from Chile; it came from the international community. Similarly, establishing responsibility for the abuses perpetrated at Abu Ghraib and Guantanamo may not happen this year (or even this decade). And it may not happen in the United States. But if history serves as a guide, it will happen.
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Question Submitted by David:
Concerning the policy of torture by the American military and CIA, what's different under the Bush administration from previous administrations?
William Aceves answers:
Dear David,
The Bush Administration has taken a much more aggressive position on the use of torture and other forms of abuse. Indeed, many of the "torture memos" reveal that torture and other cruel, inhuman or degrading treatment were institutionalized as official policy.
The "torture memos" sought to interpret the national and international norms against torture in such a way as to facilitate the use of physical and mental coercion against detainees. It was only as a result of significant and persistent public outcry that the most notorious "torture memo" was rescinded in December 2004.
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Question Submitted by Justine:
Why hasn't torture already been abolished by the U.S. government? I thought the Constitution and the Bill of Rights protected citizens from this such horrendous acts.
William Aceves answers:
Dear Justine,
Torture has long been abolished in the United States.
The U.S. Constitution contains several provisions that speak directly to torture and other cruel, inhuman or degrading treatment. For example, the Eighth Amendment prohibits cruel and unusual punishment. The Fifth Amendment provides that life, liberty, and property shall not be taken without due process of law. U.S. courts have long used these constitutional provisions to prohibit government conduct that constitutes torture as well as other abusive forms of treatment.
Numerous federal statutes also apply to prohibit torture. For example, 18 U.S.C. Section 2340 imposes criminal liability for acts of torture. Significantly, this federal statute imposes liability on any individual who commits an act of torture anywhere in the world. In addition, 28 U.S.C. Section 1350 establishes civil liability for acts of torture.
And, as noted earlier in our discussion, the United States has signed and ratified the Convention against Torture, a treaty which renounces torture under any circumstances and which obligates member states to investigate and prosecute acts of torture.
While several U.S. government memos raise serious questions about the U.S. commitment to the prohibition against torture, the more recent December 2004 memo by the Justice Department’s Office of Legal Counsel has reaffirmed the U.S. commitment.
“Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law; . . . international agreements, exemplified by the United Nations Convention Against Torture; customary international law; centuries of Anglo-American law; and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President.”
Last month, the United States submitted a report to the U.N. Committee against Torture. (The Committee against Torture was established by the Convention against Torture to monitor compliance with the obligations provided by the treaty.) You can find this report at: http://www.state.gov/g/drl/rls/45738.htm The report clearly sets forth the official U.S. government position on torture:
“The United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.”
One final point: the prohibition against torture applies to all individuals, including U.S. citizens and foreign nationals. While U.S. law distinguishes between citizens and non-citizens on some matters (i.e. immigration), the distinction is irrelevant for purposes of this fundamental human right. Thus, individuals captured in time of war or even suspected terrorists are subject to protection against torture.
Another final point! While much of our discussion is addressing torture, we need to recognize that international law also prohibits cruel, inhuman or degrading treatment.
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Question Submitted by Brad:
Where can I find copies of the "Torture Memos"? Are they online? Also, is the Bush administration still trying to get the US of of the the International Criminal Court (ICC)? And could such an action provide a shelter to US officials sanctioning torture?
William Aceves answers:
Dear Brad,
The "torture memos" are available in several forms.
There are several books now in print that contain them. These include:
-The Torture Papers: The Road to Abu Ghraib (Cambridge University Press 2005)
-Torture and Truth (New York Review Books 2004)
And here are a few websites that contain the memos:
http://www.nytimes.com/ref/international/24MEMO-GUIDE.html
http://lawofwar.org/Torture_Memos_analysis.htm
In response to your second question, the Bush Administration unsigned the Rome Statute of the International Criminal Court in 2001. Thus, the United States is not a party to the International Criminal Court. While this makes it unlikely that U.S. government officials will be prosecuted by the International Criminal Court, it does not provide immunity to them from all forms of prosecution. Any country that has ratified the Convention against Torture could seek to prosecute a U.S. government official suspected of having committed an act of torture.
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Question Submitted by Jack:
Of all the oppression in all the world, that includes places like North Korea, Zimbabwe, Iran and Cuba, why do you concentrate so much effort on the U.S., which in comparison is really a small offender?
William Aceves answers:
Dear Jack,
Historically, Amnesty has challenged human rights abuses regardless of where they occur. This is in keeping with its non-partisan and impartial approach to human rights. Thus, if human rights abuses are committed in the United States, Amnesty will document and denounce those abuses.
I urge you to read through the 2005 Amnesty Annual Report, which is available at:
http://web.amnesty.org/report2005/index-eng
The Annual Report documents human rights abuses in 149 countries, including the United States, but also Cuba, Iran, North Korea, and Zimbabwe.
I should point out that Amnesty's recent report "Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power" indicates that the United States is holding approximately 70,000 individuals as a result of the "war on terror."
http://web.amnesty.org/library/Index/ENGAMR510632005
That is not an insignificant number.
I think it is important to recognize the unique role of the United States. As a member of the U.N. Security Council, a founding member of the U.N. Commission on Human Rights, and as the leading economic and military power in the world, the United States is a role model. Countries will look to the United States for guidance, particularly in the realm of national security. If the United States commits human rights abuses in the name of national security, other countries will do the same.
Let me raise one other point. We have to be very careful when we seek to compare human rights abuses in different countries. While there may be numerical differences in human rights abuses between countries, the underlying suffering of the individual is singularly unique. The political prisoner suffers equally, regardless of where she is held. And the fate of the death row inmate is always the same.
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Question Submitted by Fred:
Recently, my brother who is generally a pretty liberal guy, said to me that if the U.S. is holding an evil terrorist in Guantanamo Bay (or wherever) he didn't have a problem with us treating him in a brutal, degrading way. The implication is that a terrorist deserves whatever he gets. My sense is that many Americans are scared that another 9-11 attack will happen and have decided to give the government & military carte blanche to do whatever is necessary - no matter how immoral, illegal or abhorrent - to protect us. What recommendations do you have of what I can say to my brother (and others like him) that will pierce through that fear and willingness to look away when they see abuses?
William Aceves answers:
Dear Fred,
This reminds me of the ticking time bomb scenario.
The arguments for using torture are deceptive, and the scenarios compelling. "A suspect knows the location of a bomb that will lead to catastrophic injuries. Should torture be used to reveal the location of the ticking time bomb?"
This scenario falls apart, however, upon careful scrutiny. First, it assumes that law enforcement has the right person in custody. That is, the suspect knows where the bomb is and when it is scheduled to detonate. What if there is only a 50 percent chance that the suspect knows the information? What if this number is only 10 percent? (Your brother mentions “the evil terrorist.” But how do we know the person is evil or even a terrorist?)
Second, the ticking time bomb scenario assumes that torture will be effective in gaining access to the critical information. In fact, however, torture is notoriously unreliable.
What if there is only a 60 percent chance that the suspect will reveal accurate information? How about 20 percent? How low are we willing to go?
Third, how should we make the decision whether to torture? How many people must be endangered before the torture option can be considered?
Fourth, what type of torture is permissible? Can family and friends be threatened and harmed? How about children? If the end truly justifies the means, the answer must be "yes."
Torture injures the victim and degrades the perpetrator. It threatens the core values of civilized nations -- respect for human dignity, justice and the rule of law. This explains why the torturer has been long been referred to as hosti humani generis -- an enemy of all humanity.
Perhaps the most basic argument against torture is that its use undermines the values that we all hold dear. It would be a tragedy if in the war against terrorism we gave up those fundamental values that make the defense of democracy worthwhile.
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Question Submitted by J.:
What is your answer to the administration's claim that "enemy combatants" do not fall under the protection of the Geneva Convention?
William Aceves answers:
Dear J.,
This is a complex question. Let’s define our terms.
Lawful combatant
Under international law, only certain individuals can lawfully take part in hostilities. Soldiers that are members of the armed forces of a party to the conflict are deemed to be lawful combatants. (There are a few other categories of recognized lawful combatants.) If you are recognized as a lawful combatant, you are entitled to several benefits. First, you may lawfully take up arms against the enemy and use force against the enemy. Second, you are entitled to the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War.
Enemy combatant
An enemy combatant is simply a combatant from the opposing side. There is nothing inherently wrong with being an enemy combatant. Of course, you are subject to capture. But you cannot be prosecuted for taking up arms against the enemy and using force against the enemy (unless, of course, the combatant violates one of the other laws of war). An enemy combatant is entitled to the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War.
Unlawful combatant
An unlawful combatant is a person who engages in combat without fulfilling the conditions that confer lawful combatant status. For example, a terrorist is not considered a lawful combatant. Unlawful combatants can be prosecuted for taking up arms against the enemy. In contrast, a lawful combatant may not be prosecuted for taking up arms against the enemy or using force against the enemy. Significantly, an unlawful combatant is not entitled to the protections of the Third Geneva Convention. However, this does not mean that the unlawful combatant is not entitled to any protection under international law.
It is important to recognize why international law recognizes a distinction between lawful and unlawful combatants. While soldiers are lawful targets in time of war, civilians are not. Thus, establishing a firm distinction between lawful and unlawful combatants helps to protect civilians in time of war.
The Bush administration has indicated that the Guantanamo detainees are unlawful combatants and do not fall under the protection of the Geneva Conventions. There are several problems with this position.
First, there are many individuals detained at Guantanamo: some presumably have affiliations with Al Qaeda; some presumably have affiliations with the Taliban; and some may have no such affiliations at all. International law makes very clear distinctions between types of combatants. But the Bush Administration does not appear to have followed the type of analysis required under international law to differentiate between the different types of combatants at Guantanamo.
Second, the Third Geneva Convention Relative to the Treatment of Prisoners of War imposes a very clear obligation on a member state: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are a prisoner of war], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” But the Bush Administration declined to establish a competent tribunal to make such determinations.
Perhaps the most important point to make is that even unlawful combatants are entitled to certain protections under international law. For example, both international human rights law and international humanitarian law prohibit torture and other cruel, inhuman or degrading treatment. This protection would apply to all individuals, including unlawful combatants.
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Question Submitted by Raquel:
Why is it important to hold U.S. officials accountable for abuses in Guantánamo, Iraq, Afghanistan and other detention camps around the world?
William Aceves answers:
Dear Raquel,
Your question is at the heart of Amnesty’s efforts to combat impunity throughout the world.
Torture and other forms of physical and mental abuse are antithetical to human dignity and the rule of law; impunity further undermines them. Punishing human rights violations serves to affirm these values and voice condemnation for such acts of violence.
But accountability serves other functions. Through criminal proceedings, a public record is created that describes the human rights abuses committed by the perpetrators and the injustices suffered by the victims. Proceedings can empower victims and facilitate their recovery. They provide victims with an opportunity to tell their stories in public, and a full and fair hearing can help restore their sense of justice. In the absence of such ameliorative efforts, victims will continue to suffer long after their physical and emotional scars fade from the public conscience.
Accountability can also advance social and political reconciliation in countries traumatized by periods of repression and persecution. Consider the Pinochet proceedings in Spain and the United Kingdom and how they influenced Chilean efforts to seek justice.
Apart from these normative considerations, there are legal reasons for why U.S. officials should be held accountable in cases of torture. The Convention against Torture establishes a clear obligation on all member states to investigate claims of torture and, where appropriate, to initiate criminal proceedings against suspected perpetrators. The 1949 Geneva Convention Relative to the Treatment of Prisoners of War contains a similar obligation: each member state has an obligation to investigate and prosecute grave breaches. Significantly, these obligations apply regardless of the perpetrators nationality, the victim’s nationality, or the location of the underlying abuse.
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Question Submitted by Julio:
Quisiera participar en idioma español porque me resulta mas confortable. Es importante pronunciarse.
William Aceves answers:
Querido Julio,
Muchas gracias por su pregunta.
Tienes toda la razon: es muy importante pronunciarse. Cada persona en nuestro mundo merece la proteccion de sus derechos humanos. Y no importa en donde vive o que lengua habla. En su mensaje sobre el Informe 2005, Irene Khan dijo que “las responsabilidades no tienen fronteras.”
Y, por supuesto, tiene razon.
Amnistia Internacional ofrece mucha informacion sobre derechos humanos en espanol. Puede encontrar esta informacion en:
http://www.amnistiainternacional.org/
http://www.amnestyusa.org/spanish/denunciemoslatortura/ievento.html
http://www.amnestyusa.org/spanish/denunciemoslatortura/abu_ghraib.html
http://www.amnestyusa.org/spanish/
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Question Submitted by Nancy:
Contracted personnel abroad: Who would prosecute? Who would ultimately be answerable? Also, Do you believe Iraqi civilians know the difference between military and contracted? ThanksYou for your very important work!
William Aceves answers:
Dear Nancy,
There are several mechanisms available to hold civilian contractors liable for abuses committed in Iraq.
Of course, the federal government could initiate criminal proceedings against individuals suspected of committing abuses.
The Iraqi government could also do so although this option is probably not available in practice.
Another option for criminal prosecution would be if a third country initiated proceedings pursuant to the Convention against Torture. As noted in a prior question, all member states have an obligation to investigate and prosecute cases of torture regardless of where the abuses occurred. If a military contractor visits one of those countries that has ratified the Convention against Torture, he or she could be subject to criminal proceedings.
It is important to point out that the United States has ratified the Convention against Torture and has adopted its own legislation criminalizing acts of torture committed abroad.
Apart from criminal proceedings, military contractors are also subject to civil liability. In fact, there is a federal lawsuit now pending against several civilian contractors for their participation in abuses at Abu Ghraib. (A federal lawsuit has also been filed against several U.S. military and political leaders, including Secretary of Defense Rumsfeld.)
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Thank you for participating. I apologize that I was not able to answer all the questions.
I hope you will remain active with Amnesty International. As today's discussion reveals, our voices must be heard. Now more than ever.
William
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