34.a. U.S. follow-up report on torture (July 25, 2007).
United States Response to Specific Recommendations
Identified by the Committee Against Torture
In its conclusions and recommendations regarding the Second Period report of the United States of America, the Committee Against Torture requested that the United States provide, within one year, information on its response to specific recommendations identified by the Committee. These specific recommendations and the United States responses to them are provided below.
“The State party should register all persons it detains in any territory under its jurisdiction, as one measure to prevent acts of torture. Registration should contain the identity of the detainee, the date, time and place of the detention, the identity of the authority that detained the person, the ground for the detention, the date and time of admission to the detention facility and the state of health of the detainee upon admission and any changes thereto, the time and place of interrogations, with the names of all interrogators present, as well as the date and time of release or transfer to another detention facility.”
As an initial matter it should be noted that the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the Convention”) has no provision requiring the registration of prisoners.
Although there is no unified national policy governing the registry of persons detained in territory subject to the jurisdiction of the United States, relevant individual federal, state, and local authorities, including military authorities, as a matter of good administrative practice generally maintain appropriate records on persons detained by them. Such records would generally include the information mentioned in the Committee’s recommendation.
“The State party should apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, in order to comply with its obligations under article 3 of the Convention. The State party should always ensure that suspects have the possibility to challenge decisions of refoulement.”
There are two issues that appear to be raised in this conclusion and recommendation. The first issue is the evidentiary standard that would trigger application of CAT Article 3. As the United States described to the Committee, pursuant to a formal understanding the United States filed at the time it became a State Party to the Convention, the United States determines whether it is more likely than not that a person would be tortured, rather than whether a person faces a “real risk” of torture.
The second issue addresses the territorial scope of Article 3. Although the United States and the Committee hold differing views on the applicability of the non-refoulement obligation in Article 3 of the Convention outside the territory of a State Party, as the United States explained to the Committee at length, with respect to persons outside the territory of the United States as a matter of policy, the United States government does not transfer persons to countries where it determines that it is more likely than not that they will be tortured. This policy applies to all components of the government, including the intelligence agencies. Although there is no requirement under the Convention that individuals should have the possibility to challenge refoulement, United States practice in the different areas in which this provision comes into play is designed to ensure that any torture concerns, whenever raised by the individual to be transferred, are taken into account. For example, in the context of immigration removals from the United States, as noted in the United States periodic report, there are procedures for alleging torture concerns and procedures by which those claims can be advanced.
“When determining the applicability of its non-refoulementobligations under article 3 of the Convention, the State party should only rely on “diplomatic assurances” in regard to States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case. The State party should establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements. The State party should also provide detailed information to the Committee on all cases since 11 September 2001 where assurances have been provided.”
As explained to the Committee, the United States undertakes a thorough, case-by-case analysis of each potential transfer where diplomatic assurances are involved. This analysis takes into account all relevant factors, including all available information about the compliance of the potential receiving state with its international obligations, including those under the Convention, and the merits of each individual case.
The United States would like to emphasize to the Committee, as it did on other occasions, that diplomatic assurances are used sparingly but that assurances may be sought in order to be satisfied that it is not “more likely than not” that the individual in question will be tortured upon return. It is important to note that diplomatic assurances are only a factor that may be considered in appropriate cases and are not used as a substitute for a case-specific assessment as to whether it is not more likely than not that a person will be tortured if returned.
Procedures for obtaining diplomatic assurances vary according to the context (e.g., extradition, immigration removal, or military custody transfer) and have been made available to the Committee. For example, the United States report provides information regarding regulatory procedures for consideration of diplomatic assurances in the immigration removal context, which provide for the opportunity to allege torture and advance such claims. In addition, attached in Annex 1 is a declaration by Clint Williamson, Ambassador-at-Large for War Crimes Issues at the Department of State, dated June 8, 2007, and filed in United States federal court. This declaration explains in detail the process for obtaining and considering diplomatic assurances for detainees to be transferred from Guantanamo. It supersedes the declaration by former Ambassador Pierre Prosper that was provided to the Committee as part of the Second Periodic Report. For the Committee’s information, With regard to post-return monitoring arrangements, the United States agrees that follow-up following return is important. Indeed, the United States has requested and obtained information about the situation of individuals who have been transferred to other countries subject to assurances. As explained to the Committee, the United States would pursue any credible report and take appropriate action if it had reason to believe that those assurances would not be, or had not been, honored.
The United States does not unilaterally make public the specific assurances provided to it by foreign governments. Reasons for this policy were articulated in the materials provided to the Committee, including the fact that unilaterally making assurances public might make foreign governments reluctant in the future to communicate frankly with the United States concerning important concerns related to torture or mistreatment.
“The State party should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention.”
Among the actions purported by the Committee to be governed under the Convention – including, for example, (1) closing Guantanamo; (2) permitting judicial access by enemy combatant detainees in that facility; or (3) not returning individuals who face “a real risk” of being tortured – the first two lack an arguable textual basis in the Convention, while the third issue is discussed at length in materials provided to the Committee as well as in the response to the Committee’s recommendation in paragraph 20 above.
As the United States explained to the Committee, the United States is in an armed conflict with al-Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Convention, provides the applicable legal framework governing these detentions.
Without going into further detail about its legal disagreements with the Committee’s sweeping legal assertions regarding the scope of the Convention – which are addressed in other responses – the United States has made it clear in many different settings that it does not want to be the world’s jailer. Although the Committee calls for the closure of Guantanamo, it does not appear to take into account the consequences of releasing dangerous terrorist combatants detained there or explain where those who cannot be repatriated due to humane treatment concerns might be sent. The United States will continue to look to the international community for assistance with resettlement of those detainees approved for transfer or release.
The United States does permit access by Guantanamo detainees to judicial process. Every detainee in Guantanamo is evaluated by a Combatant Status Review Tribunal (CSRT), which determines whether the detainee was properly classified as an enemy combatant and includes a number of procedural guarantees. A CSRT decision can be directly appealed to a United States domestic civilian court, the Court of Appeals for the District of Columbia Circuit. Providing such an opportunity for judicial review exceeds the requirements of the law of war and is an unprecedented and expanded protection available to all detainees at Guantanamo. These procedural protections are more extensive than those applied by any other nation in any previous armed conflict to determine a combatant’s status.
After a CSRT determination, each enemy combatant not charged by a Military Commission receives an annual review to determine whether the United States needs to continue detention. An Administrative Review Board (ARB) conducts this review.
Since the Committee’s consideration of the United States report in May 2006, approximately 120 detainees have departed Guantanamo. This process is ongoing. Updates are available at http://www.defenselink.mil/news/nrdgb.html.
These transfers are a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing – an unprecedented step in the history of warfare.
At present, approximately 375 detainees remain at Guantanamo, and approximately 405 have been released or transferred. The Department of Defense has determined -- through its comprehensive review processes -- that approximately 75 additional detainees are eligible for transfer or release. Departure of these detainees is subject to ongoing discussions between the United States and other nations.
In September 2006, the Department of Defense released the updated DoD detainee program directive 2310.01E, and the Army released its revised Field Manual on Interrogation. These documents are attached in Annexes 2 and 3, respectively. They provide guidance to military personnel to ensure compliance with the law, and require that all personnel subject to the directive treat all detainees, regardless of their legal status, consistently with the minimum standards of Common Article 3 until their final release, transfer out of DoD control, or repatriation. Of course, certain categories of detainees, such as enemy prisoners of war, enjoy protections under the law of war in addition to the minimum standards prescribed by Common Article 3.
Furthermore, under the Military Commissions Act of 2006, serious violations of Common Article 3, including torture and cruel or inhuman treatment, are criminal offenses. In defining precisely those violations that are subject to criminal prosecution, greater clarity is provided to officials involved in detention and interrogation operations on what treatment violates United States and international law. A copy of the Military Commissions Act is attached at Annex 4.
Following Hurricane Katrina, which devastated the Gulf Coast region of the United States, there have been media reports of alleged ill-treatment perpetrated by law-enforcement personnel. The Federal government and relevant state entities have attempted to determine the validity of the allegations. Given the dual-sovereign system of government in the United States, as well as the manner in which the Federal government keeps statistics of allegations of police misconduct, it is not possible for the United States to accurately determine how many allegations of law enforcement misconduct were reported or investigated in the aftermath of Hurricane Katrina.
The Department of Justice’s Civil Rights Division has opened files in connection with at least ten complaints of law-enforcement misconduct in the affected areas following the storm. Three of those complaints have been closed without prosecution because the allegations did not constitute prosecutable violations of federal criminal civil rights law. The three closed files included unsubstantiated allegations of an assault in a Mississippi jail; a civilian who was struck by a patrol car during the evacuation; and officers stealing cars from a car dealership following the storm.
Two of the nine matters opened by the Civil Rights Division involve incidents that have led to criminal charges being filed by the State of Louisiana. In October 2005, three New Orleans Police Department officers were charged with battery stemming from the assault of an individual in the New Orleans French Quarter a few weeks after Hurricane Katrina. In December 2006, seven New Orleans Police Department officers were indicted for the fatal shooting of two individuals on the Danzinger Bridge in the aftermath of the hurricane. Both cases still are pending, and the Department of Justice will continue to monitor these prosecutions.
The remaining files that were opened by the Civil Rights Division still are open and the investigations into those allegations are pending. Applicable federal law and policy requires that information concerning pending investigations into those allegations remain confidential. Nevertheless, the Committee can be assured that if an investigation indicates that there was a violation of a federal criminal civil rights statute, appropriate action will be taken.
In addition to the cases reviewed by the Civil Rights Division, the Louisiana Attorney General’s Office is conducting an exhaustive inquiry into allegations that New Orleans residents were not permitted by law enforcement officials to cross the Greater New Orleans Bridge to Gretna, Louisiana, during the evacuation of the city. The Civil Rights Division intends to review the results of the state’s investigation to determine whether the facts implicate a violation of any federal statutes.
The U.S. Department of Homeland Security (DHS) also received complaints alleging ill-treatment by law enforcement personnel in the aftermath of Hurricane Katrina. Specifically, DHS’s Immigration and Customs Enforcement Office of Professional Responsibility (ICE OPR) received six complaints and its Office of Inspector General (IG) received three complaints. The allegations raised by these complainants are detailed below:
Complaints received by ICE OPR:
• One complaint regarding an alleged civil rights/false arrest violation.
• Two complaints regarding alleged looting/theft of electronics.
• One complaint regarding an alleged rape.
• One complaint regarding an alleged unauthorized procurement of supplies.
• One complaint regarding alleged rude conduct.
Complaints received by the DHS Inspector General:
• One complaint regarding alleged intimidation/mismanagement.
• Two complaints regarding alleged false claims.
These allegations are being or have been investigated pursuant to standard procedures.
1. Declaration of Clint Williamson
2. Department of Defense Directive 2310.01E
3. Army Field Manual 2-22.3, Human Intelligence Collector Operations
4. Military Commissions Act of 2006 (P.L. 109-366)
5. Sexual Violence Reported by Correctional Authorities, 2005 (Department of Justice, Bureau of Justice Statistics)
6. Department of Homeland Security, “Hurricane Katrina: What Government Is Doing”
 See Committee Against Torture, Conclusions and Recommendations of the Committee Against Torture –United States of America, UNDOC CAT/C/USA/CO/2 at ¶43 (July 25, 2006).
 For further information on such records, see List of Issues to Be Examined During the Consideration of the Second Periodic Report of the United States of America – Response of the United States of America, available at http://www.usmission.ch/Press2006/CAT-May5.pdf at 13 (May 5, 2006) [hereinafter referred to as “Response to List of Issues”].
 See, e.g., Second Periodic Report of the United States of America to the Committee Against Torture, available at http://www.state.gov/g/drl/rls/45738.htm at ¶30 (May 6, 2005) [hereinafter referred to as “Second Periodic Report”]; Response to List of Issues at 37-38.
 See, e.g., Response to List of Issues, supra note 2, at 32-37.
 See id. at 49.
 See Second Periodic Report, supra note 3, at ¶32-38; Response to List of Issues, supra note 2, at 27-30.
 See, e.g., Second Periodic Report, supra note 3, at ¶30; Response to List of Issues, supra note 2, at 45-48.
 See, e.g., Response to List of Issues, supra note 2, at 45.
 See Second Periodic Report, supra note 3, at ¶33 (immigration removal) and ¶40 (extradition); Annex I, Part One, Section II.E (military transfers).
 See Second Periodic Report, supra note 3, at ¶33.
 See id., Annex I, Tab 1.
 See id.
 See, e.g., Second Periodic Report, supra note 3, at ¶30; Response to List of Issues, supra note 2, at 37-38.
 See, e.g., Second Periodic Report, supra note 2, Annex I, Part One, Section I.
 See supra at 2-3.
 See, e.g., Second Periodic Report, supra note 3, Annex I, Part One, Section I.
 See Response to List of Issues, supra note 2, at 87.
 18 U.S.C. § 2340A.
 Pub. L. No. 109-148, 119 Stat. 2739.
 Pub. L. No. 109-366, 120 Stat. 2600.
 See, e.g., Second Periodic Report, supra note 3, at ¶¶87-94, 96-101, 120; Response to List of Issues, supra note 2, at 101-05.
 See Response to List of Issues, supra note 2, at 100.
 See List of Issues to be Taken up in Connection with the Second and Third Periodic Reports of the United States of America, available at http://www.usmission.ch/ICCPRAdvanceQ&A.pdf (July 17, 2006).
 See Response to List of Issues, supra note 2, at 102-03.
 See Second Periodic Report, supra note 3, at ¶¶114-17; Response to List of Issues, supra note 2, at 97-99.
 The United States is a party to the two Optional Protocols to the Convention on the Rights of the Child.
 See, e.g., Response toList of Issues, supra note 2, at 69-76, Annexes 4-8.
 See, e.g., Second Periodic Report, supra note 3, at ¶¶8, 11-29, 45-55, 63-84, 87-139.
 See, e.g., Response to List of Issues, supra note 2, at 8-12, 44, 50-53, 63-69, 85-89.