13 November 2014
The Committee against Torture today concluded its consideration of the combined third to fifth periodic report of the United States on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Keith Harper, Representative of the United States to the Human Rights Council, in his opening statement, said that the United States had learned from the past and had sought to strengthen the implementation of the Convention against Torture, adding that the dialogue with the United Nations human rights treaty bodies was a part of the valuable process to push all nations to do better.
Tom Malinowski, Assistant Secretary for Democracy, Human Rights and Labour, Department of State, in his introductory remarks, said that the United States actively worked to combat torture around the world; the United States condemned it, urged other Governments to cease its use, made efforts to sanction those responsible and supported civil society organizations that campaigned against torture and treated its victims.
Mary McLeod, Acting Legal Adviser, Department of State, in introductory remarks, said that in the wake of the 9/11 attacks, the United States regrettably had not lived up to its own values; as acknowledged by President Obama, the United States had crossed the line and was now taking important steps to ensure adherence to its legal obligations.
David Bitkower, Deputy Assistant Attorney General, Criminal Division, Department of Justice, in his introductory remarks, spoke about criminal investigations into specific allegations of detainee abuse, and criminal prosecutions against those who sought safe haven in the United States who committed crimes such as rape and killing of children in Iraq, shooting of civilians, and brutal beating of detainees in Afghanistan.
Committee Experts took note with satisfaction of the statements made by President Obama to condemn unequivocally the practice of torture and asked about concrete measures to implement his clear position against the practice of torture, including on enhanced interrogation techniques. Registration of detainees was the first step to prevent torture and Experts wondered why it was not considered as such by the United States; they asked about interrogation techniques employed by the High Value Detainee Interrogation Group established to interrogate the most dangerous terrorists.
The delegation was also asked about geographical applicability of the Convention against Torture, the status of the 2010 Law Enforcement Torture Prevention Act, which contained a definition of torture, the practice of extraordinary rendition, the plans and timetable for closing of the Guantanamo detention facility, the ethics of medical management of detainees on hunger strike in Guantanamo which raised concern about practice of ill-treatment or even torture, and the field expedient separation technique set put in the army field manual, which aimed to prolong the shock of capture by visual and auditory deprivation, which might not be in accordance with the Convention.
In concluding remarks, Mr. Harper said that the United States and the Committee shared common ground and common values and reiterated the commitment of the United States to eradicating torture. This valuable dialogue would continue also at the Human Rights Council Universal Periodic Review, when the United States was due for review in six months’ time.
George Tugushi, Committee Vice-Chairperson, in concluding remarks thanked the delegation for its engagement with the Committee and agreed with a member of the delegation that the best test for any nation committed to this Convention and to the rule of law was not whether it had ever made mistakes, but whether and how it corrected them.
The delegation of the United States included representatives of the Department of State, Department of Justice, Department of Homeland Security, Department of Defence, Mississippi Attorney General, Rhode Island Department of Corrections, and members of the Permanent Mission of the United States to the United Nations Office at Geneva.
The Committee will reconvene in public on Friday, 15 November, at 3 p.m. to continue its consideration of the combined fourth and fifth periodic report of Croatia (CAT/C/HRV/4-5).
The combined third to fifth periodic report of the United States can be read via the following link: CAT/C/USA/3-5.
Presentation of the Report
KEITH HARPER, Representative of the United States to the Human Rights Council, in his opening statement, said that the United States had taken a leading role in the negotiation of the Convention against Torture and that the opposition to torture was a fundamental American value. The United States had learned from the past and had sought to strengthen the implementation of the Convention against Torture. The dialogue with the United Nations human rights treaty bodies was part of a valuable process to push all nations to do better and Mr. Harper welcomed the presence of civil society in the room.
TOM MALINOWSKI, Assistant Secretary for Democracy, Human Rights and Labour, Department of State, also in introductory remarks, said that the United States took very seriously its obligations under the Convention and the prohibition of torture and cruel treatment was part of the Constitution. Torture and cruel, inhuman and degrading treatment and punishment were forbidden in all places, at all times, with no exception; such treatment devastated victims, and harmed people and countries that employed it. The United States actively worked to combat torture around the world; it condemned it, urged other Governments to cease its use, made efforts to sanction those responsible, and supported civil society organizations that campaigned against torture and treated its victims.
MARY MCLEOD, Acting Legal Adviser, Department of State, also introducing the report, said that in the wake of the 9/11 attacks, the United States regrettably had not lived up to its own values, including those reflected in the Convention. As acknowledged by President Obama, the United States had crossed the line and was now taking important steps to ensure adherence to its legal obligations. Laws and procedures to strengthen the safeguards against torture and cruel treatment had been established, while the 2009 Executive Order 13491 on ensuring lawful interrogation determined that any individual detained in armed conflict by the United States or within a facility owned, operated or controlled by the United States, in all circumstances must be treated humanely and must not be tortured or subjected to cruel, inhuman or degrading treatment or punishment. It had revoked all previous executive directives inconsistent with the Order, including legal opinions regarding the definition of torture, and had created a Special Task Force of Interrogations and Transfer Policies Issues to strengthen the policies so that individuals transferred to other countries would not be subject to torture. A number of investigations of the treatment of detainees in the post-9/11 period had been made public, and the release of the findings and conclusions of a detailed congressional investigation into the former detention and interrogation programme was soon expected. Ms. McLeod affirmed that the United States currently exercised control as a governmental authority at the United States Naval Station at Guantanamo Bay, Cuba and on registered United States ships and aircraft.
DAVID BITKOWER, Deputy Assistant Attorney General, Criminal Division, Department of Justice, also in introductory remarks, said that the Department of Justice had been part of the broad, long-lasting and comprehensive efforts to examine the United States failures of living up to its values. It had undertaken several reviews and criminal investigations into specific allegations of detainee abuse and had brought criminal prosecutions against those who sought safe haven in the United States, including former United States soldiers convicted for raping and killing a 14-year old Iraqi girl and then killing her family, a Central Intelligence Agency contractor who had been convinced of brutally beating an Afghan detainee, and four civilian government contractors for shooting to death 14 civilians and injuring 20 others in Nisur Square in Baghdad, Iraq in 2007. Over the past five years the Department had opened over 20 investigations into allegations of systemic police department violations, had criminally prosecuted for misconduct more than 330 police officers, and had developed the regulations to implement the Prison Rape Elimination Act in an effort to prevent, detect and respond to abuse in prisons.
Questions by the Country Rapporteurs
ALESSIO BRUNI, Committee Expert acting as Country Rapporteur, asked the delegation to confirm that the Convention against Torture was applicable to its officials abroad without geographical limitations, and stressed that if geographical limitations indeed did exist, the United States could not then say that for them the prohibition of torture was absolute; it stopped at its borders and torture was fully authorised in the rest of the world.
The Country Rapporteur took note with satisfaction of the several statements made by President Obama to condemn unequivocally the practice of torture and asked the delegation to elaborate on his findings and conclusions that torture was not only a horrible crime, but also a totally ineffective practice. Which concrete measures had been made to implement President Obama’s clear position against the practice of torture since August 2014? What progress had been made towards the publication of the rendition, detention and interrogation report prepared by the Senate select committee on intelligence? President Obama considered that enhanced interrogation techniques were a form of torture, and Mr. Bruni asked whether those techniques were subject to new administrative and legal measures envisaging prosecution of those responsible.
What was the status of the 2010 Law Enforcement Torture Prevention Act, which contained a definition of torture? Were enhanced interrogation techniques included in acts prohibited in practice? The law was silent about delegating the task of torture to entities external to the United States administration and not involving the State officials directly. The 2006 Council of Europe report estimated that 100 people had been kidnapped by the Central Intelligence Agency (CIA) on European Union territory and rendered to other countries, often after transfer through secret detention centres known as “black sites”. The 2007 report by the European Parliament referred to 1,245 flights organized by the CIA to transfer suspects to countries where they could face torture, in violation of the Convention against Torture. The delegation was asked to comment on the practice of extraordinary rendition and explain measures taken to publicly condemn such practice.
Concerning detention, the Country Rapporteur stressed that registration of detainees was the first step to prevent torture and asked why it was not considered as such by the United States, and also asked about the regulation of detention facilities used by the CIA to hold people on a short-term, transitory basis. The High Value Detainee Interrogation Group had been established to interrogate the most dangerous terrorists and the delegation was asked to comment on its interrogation techniques, to enable the Committee to see whether they were consistent with the provisions of the Convention.
On the closing of the Guantanamo detention facility, the Country Rapporteur noted that in 2013 there had been 166 detainees, and as reported by the media, 149 in May 2014, and asked how many were there today, how many were waiting for transfer to another country, how many were subject to prosecution in the United States, and how many were still kept in detention because they were suspects, but had never received a formal charge against them. Did the United States have a specific plan and timetable for the closure of Guantanamo? What were the reasons for refusal of private meetings between the detainees and the Special Rapporteur on torture?
Mr. Bruni also asked about the implementation of the principle of non-refoulement and about the dramatic phenomenon of unaccompanied children entering the country illegally: more than 68,000 had been apprehended on the border between October 2013 and September 2014. The delegation was asked to comment on the death penalty, which in some instances might amount to torture, and the executions; living conditions in detention; the application of the Prison Rape Elimination Act 2003 and the progress made in decreasing or eliminating this phenomenon; and about overcrowding in prisons.
JENS MODVIG, Committee Expert acting as Country Rapporteur, took up the issue of the applicability of the Convention against Torture and asked whether the United States considered that all its provisions were applicable to territories under de jure or de facto control of the State and the applicability of the Convention to the detention facility at Guantanamo Bay. Could the delegation comment on the impact of the training conducted for law enforcement officials, prison staff and others on reducing incidents of torture, violence and ill-treatment; the ethics of medical management of detainees on hunger strike in Guantanamo and the involuntary medical treatment, which raised concern about the practice of ill-treatment or even torture; and the field expedient separation technique set put in the army field manual, which aimed to prolong the shock of capture by visual and auditory deprivation, which might not be in accordance with the Convention?
Mr. Modvig inquired about the steps to review the police practices following the recent events in Ferguson, Missouri and about the mechanisms of independent oversight and accountability that applied to ensure the prevention of excessive use of force by the police. More than 100 service members of the armed forces had been put before a court martial for mistreatment of detainees; what was the number of cases processed, the charges presented and their outcomes in terms of convictions and reparations? Would the United States consider meeting its obligation to investigate under Article 13 of the Convention, by investigating all credible allegations of torture during United States custody? How many complaints had been received from Guantanamo detainees, what were their nature and their outcomes?
The delegation was also asked about the Durham preliminary review and why it did not include victims of torture; to comment on reports that the United States continued to invoke claims of immunity for government officials and State secrecy laws to evade liability; and to provide an update on the investigation and related prosecution for the destruction of evidence by CIA personnel.
The Country Rapporteur commended the United States for its commitment to support the rehabilitation of torture survivors and wondered whether the United States would consider increasing domestic availability and access to rehabilitation services and enter into collaboration with the existing services to develop standards of care and monitor the rehabilitation activities. How many victims of torture had legally pursued and successfully obtained effective remedy for torture during United States custody within and outside the State territory, and how many victims of torture formerly detained in Guantanamo had received judicial remedy for their treatment?
Other issues the Country Rapporteur raised with the delegation included inadmissibility of evidence obtained through torture, sexual victimization of inmates, gaps in the protection of juveniles in the criminal justice system, protection of lesbian, gay, bisexual and transgender persons from ill-treatment in the criminal justice system, sexual violence in the military, life without parole and the rules of solitary confinement.
Questions by the Committee Experts
Concerning the interrogation methods provided for in the army field manual, a Committee Expert asked whether the Guantanamo detainees were the only ones subject to such interrogation methods, and whether their status was linked to prisoners of war. The scale of immunity of people working in Guantanamo was an issue of particular concern, and they would never stand a trial. The drone operations carried by the United States had direct psychological impact on the civilian population in Yemen who lived under constant threat of attacks, which amounted to ill-treatment.
Another Expert stressed that among the most important lessons learned was that in interpreting the laws, the principle of constitutionality and the principle of legality must not go through the window. Were there any measures that could be taken with regard to abuses by clergy?
The delegation was also asked to assess the Prison Litigation Reform Act and provide an update on its status, measures taken to improve the situation of homeless people, and measures to ensure the safety of lesbian, gay, bisexual and transgender persons.
GEORGE TUGUSHI, Committee Vice-Chairperson, asked the delegation about the measures to limit the imposition of solitary confinement, particularly on vulnerable individuals including children and elderly, the failure to use measures of alternative detention to avoid prolonged detention, and the mechanisms in place to receive complaints about sexual abuse in detention.
ALESSIO BRUNI, Committee Expert acting as Country Rapporteur, asked about living conditions in detention, which was an issue of concern, and stressed, in regard to the ratification of the Optional Protocol, that international treaties strengthened domestic legal systems.
JENS MODVIG, Committee Expert acting as Country Rapporteur, asked the delegation about the methods of identification of victims of torture among asylum seekers to ensure they were not returned to a country where they were in danger of torture, and about the plans to prohibit shackling of pregnant female detainees, including during labour.
Replies by the Delegation
Responding to the questions raised and comments made by the Committee Experts, the delegation said, concerning the principle of non-refoulement, that the United States did not transfer any individual to a foreign country where it was more likely than not that the person would be subjected to torture. A special task force had been set up to study the return of individuals to ensure that the United States followed the laws and that the persons in question were not transferred to face torture. There had been cases where the United States declined to return individuals even when diplomatic assurances were offered; for example, the United States did not return Uighurs to China. Replying to the question on the position of the United States regarding the International Criminal Court, the delegation said that the country had signed agreements with more than 100 States that applied to United States persons to render or transfer such persons to the International Criminal Court only with the consent of the United States; to date, there had been no requests for such consent. The United States was committed to prosecuting those responsible for war crimes, genocide and crime against humanity, as well as for crimes under the Convention against Torture.
As ordered by President Obama, the former detention and interrogation programme was over and would not be reinitiated and this was reflected in the law; the Detainee Treatment Act of 2005 prohibited cruel, inhuman or degrading treatment or punishment at all times and in all places. On January 22, 2009, President Obama had issued Executive Order 13491 which required the CIA to close as expeditiously as possible any detention facility it operated, and prohibited it from operating any such facility in the future. The CIA was in full compliance with the requirements of that Executive Order.
Torture was absolutely prohibited under all circumstances, in all times and in all settings. Any individual detained in any armed conflict in custody or effective control of the United States or in facilities owned or operated by the United States must be treated humanely and must not be tortured or subjected to cruel and inhumane treatment and punishment. Those prohibitions were unequivocal and bound all State officials everywhere.
In terms of international law obligations, the law on armed conflict was lex specialis and was the controlling body of law with regard to conduct of hostilities and the protection of war victims. The United States had also recognized that a time of war did not suspend the operation of the Convention against Torture which continued to apply.
President Obama had repeatedly reaffirmed his commitment to close the detention facility at Guantanamo Bay and had outlined a series of steps to reach that goal in May 2013; since then, 18 detainees had been transferred from Guantanamo mainly as a result of an internal administrative review procedure established to ensure that only those who continued to represent a significant threat to the United States remained in detention. Currently, there were 148 individuals at Guantanamo under law of war authority; of those 79 were currently designated for transfer subject to appropriate security and humane treatment measures, 33 had been designated for potential prosecution either in federal court or by military commission, and 36 were designated for continued law of war detention and would be periodically reviewed.
The Army Field Manual on Interrogations was available online; interrogation guidelines were consistent with the domestic and international legal obligations and were binding on all United States military and all federal government agencies, including intelligence agencies and the High Value Detainee Interrogation Group. This applied to all individuals in United States custody or under United States effective control in any armed conflict. The manual explicitly prohibited threats, coercion and physical abuse and did not conduct the use of sleep manipulation or sensory deprivation.
Under standard United States military procedure, each individual detained by the United States forces for more than a temporary period was assigned an internment serial number, starting a formal process of oversight and record keeping. Every internment serial number was reported to the International Committee of the Red Cross which was also given access to these individuals and to internment locations. Detainees at Guantanamo were provided with high quality medical care comparable to that which service personnel received while serving in this facility. The practice was consistent with the non-binding Principles of Medical Ethnics.
The Department of Defence had administrative mechanisms to ensure that personnel adhered to the laws and policies of military operations and detention; the Department had conducted thousands of investigations since 2001 and had prosecuted or disciplined hundreds of service members for mistreatment of detainees and other misconduct. More than 70 investigations in Afghanistan had resulted in full court procedures and close to 200 had resulted in either non-judicial punishment or adverse administrative action.
The United States would welcome the visit to the country by the Special Rapporteur on torture Mr. Mendez, and the visit to Guantanamo detention facility would be authorized under the conditions previously communicated to the Special Rapporteur.
The Prison Litigation Reform Act had been broadened in 2013 to allow a showing of “the commission of a sexual act” as an alternative to physical injury to establish eligibility for compensation for emotional distress. The Act did require inmates to exhaust administrative remedies before bringing suit in federal court and this requirement provided correctional agencies with an opportunity and encouragement to resolve issues themselves. Prisoners in federal or state prisons claiming they had been tortured might seek redress against state and local officials in a civil suit for violations of fundamental rights and might seek injunctions to require prison officials to correct conditions that were constitutionally infirm.
All persons in the United States had the right to seek habeas corpus review while the United States Supreme Court had identified factors to be considered in the application of this right outside the sovereign territory, including the citizenship and status of the detainee and the adequacy of the process through which the status determination was made, the nature of the sites of apprehension and detention, and the practical obstacles inherent in resolving the habeas claim. The right to bring habeas proceedings had been held by courts to reach extraterritorially to the detainees at Guantanamo and the United States citizens detained by United States military authorities in Iraq. Detainees at Guantanamo could request a court-appointed lawyer to serve free of charge and hundreds of private attorneys had volunteered to provide representation.
Although there was no unified policy governing registry of all persons in detention in the United States, appropriate records were maintained; the Constitution provided comprehensive safeguards to ensure that those in detention were protected and provided due process.
The High Value Detainee Interrogation Group had been established to promote the ability to interrogate the most dangerous terrorists; its personnel must comply with the legal and policy limitation of the group itself and their home agencies. All interrogations were consistent with the provisions of Executive Order 13491 and the United States domestic and international law, including the Convention against Torture. Enhanced interrogation techniques were no longer practiced. The United States was not actively considering adopting new federal legislation prohibiting torture within the United States because relevant conduct had already been covered by the legislation.
The efforts to reduce the federal prison population had been the priority for the Attorney General; as part of the Smart on Crime Initiative, the Department of Justice had modified its charging policies to ensure that mandatory minimum sentences were reserved for the most serious criminals, while the United States Sentencing Commission had adopted in 2014 amendments to lower guideline penalties for all drug offenders. The Department was also pursuing alternatives to incarceration for low-level, non-violent crimes, including the use of diversion programmes that did not require incarceration.
In addition to the local investigation, a criminal investigation into the shooting of Michael Brown in Ferguson, Missouri was ongoing and looking at any potential federal civil rights violations. There was also an ongoing civil investigation into the Ferguson Police Department, focused on the use of force including deadly force, stop searches and arrests, discriminatory policing, and treatment of detainees inside the Ferguson’s city jail.
The Department of Justice was committed to protecting the rights of youth in juvenile detention and the commitment system and often obtained relief that was designed to reform juvenile detention systems and that affected a large number of juveniles. In 2011, approximately 7,400 youths aged 16 to 17 had been held in adult prisons; in 2011-2011 an estimated 4.7 per cent of those youth in prison and jails had experienced sexual victimization. The United States Supreme Court held that sentence of life without parole violated the Eighth Amendment’s prohibition on cruel and unusual punishment when applied to juvenile offenders for non-homicide crimes and could not be made mandatory for juvenile offenders, even those who committed murder. The Department of Justice was working with Members of Congress to refine legislation drafted to address the Supreme Court’s decision on those issues.
The Constitution prohibited the use of seclusion in a manner that constituted cruel and unusual punishment and the Department of Justice had matters involving allegations of misuse of solitary confinement in 20 states and United States territories and had issued findings or reached settlements in some of those matters. Extensive action was taken to prevent sexual violence in its detention centres. The Prison Rape Elimination Act aimed to prevent, detect and respond to sexual abuse in confinement facilities at the federal, state and local levels.
Recent reforms to achieve reform in the practice of solitary confinement had addressed the process of determining whether to place someone in such a status, the degree of isolation, the condition under which the inmate lived in this setting, opportunities to earn removal from this status, and ways to reintegrate into the general population. In some states, individualized case reviews had led to significant declines in the use of supermax cells without compromising safety and security. Prison officials were developing policies and practices to comply with the standards outlined in the Prison Rape Elimination Act to protect inmates against sexual coercion by staff or other inmates. Staff sexual conduct with inmates was a crime in every state; consent was not a defence. The standards focused on vulnerability of lesbian, gay, bisexual, transgender and intra-sex offenders to sexual abuse and practices were being adopted to protect their dignity, make individualized housing and programme placement and protect them from harassment and victimization.
The United States strived to ensure that undocumented migrants were treated humanely in a manner consistent with the Constitution, domestic laws and applicable international obligations. Congress had passed laws designating certain criminal or terrorist activities as sufficiently serious to warrant mandatory detention pending a removal decision by an immigration judge, and also gave immigration agencies discretion to release most of other removable persons. If upon arrival to a port on entry into the United States an individual expressed a fear of return to his or her country, including an intention to apply for asylum, the case was referred to an asylum officer or an immigration judge.
All detention facilities holding civil immigration detainees were held accountable for compliance with concrete detention standards. The use of restraints on pregnant women and women in post-delivery recuperation, and on women in active labour or delivery was prohibited. Privately owned or operated detention facilities were held to same detention standards. The locations of all short and long-term immigration facilities were publicly available online.
The United States had experienced a humanitarian crisis during the spring and summer of 2014, as tens of thousands of unaccompanied children and families had crossed its southwest border. The focus of the initial response was on getting those adults and children, many of whom had undertaken an extremely dangerous journey, into a safe and secure environment to be processed. Then temporary detention spaces for families had been added and there were plans to open a new residential centre to house families in Texas, which were subject to Family Residential Standards. Asylum officers were available in those facilities to conduct credible and reasonable fear interviews and allow individuals to put forth claims for asylum and other forms of protection. It was the responsibility of the United States to return safely to their home countries those individuals who crossed the border illegally and were without a viable protection claim. Unaccompanied children were held only for the amount of time necessary for processing and the arrangement of shelter placement with the Department of Health and Human Services.
The United States had not become a party to the Optional Protocol for a number of legal and practical impediments, including the concerns about certain provisions that might be problematic under the United States Constitution in relation to the legal standards for search and seizure. In light of the fact that the Optional Protocol to the Convention against Torture prohibited reservations by States parties, the United States would need comprehensive implementing legislation to compel states and localities to provide information on persons under detention and to permit visits and private access to the Subcommittee on the Prevention of Torture and the national preventive mechanism.
The delegation stressed that the Government had been open and truthful about what happened, even when releasing such information had been profoundly uncomfortable; but to move forward, the United States must be able to look backward and come to terms with what had happened in the past. Rather than weakening the standards against torture and cruelty, the result of that episode in history had been to strengthen them; precisely because the United States had experienced those problems, it now had more detailed and specific regulations barring abusive interrogation than any other country on earth. The process of improvement and the willingness to confront problems directly and honestly was what distinguished democratic countries committed to rule of law.
Further Questions by the Committee Experts
ALESSIO BRUNI, Committee Expert acting as Country Rapporteur, asked the delegation to provide clarifications about the global applicability of the Convention against Torture and why some of the detainees in Guantanamo were held in detention for many years without being charged. The Country Rapporteur requested further explanations concerning the registration of detainees and the application of the Prison Rape Elimination Act, and said that the ratification of the Optional Protocol would have a positive impact on the possibilities of recourse for detainees who filed complaints.
JENS MODVIG, Committee Expert acting as Country Rapporteur, took positive note of the recognition that the United States had engaged in torture and welcomed its cooperation with the Committee. The Country Rapporteur asked the delegation about the transfer of the 58 Yemeni detainees in Guantanamo who had been cleared for release, whether CIA personnel had been included on training on the prevention of torture, and the number of civilian claims by citizens for acts of torture that had been dismissed for procedural irregularities.
Another Expert noted that the United States would repair its standing if it began the process of restitution and rehabilitation of its victims of torture, and this was not only for Guantanamo detainees, but for victims of police brutality and abuse, victims of abuse by clergy, and victims of racial discrimination. The compensation should go beyond just monetary compensation, and there were systems available from which the United States could learn. Vestiges of the past, historical injustices, recent injustices and ongoing injustices must be eliminated.
Other issues raised by the Experts included the mechanisms to ensure that those in the Government understood the pain of intimate partner violence, measures to ensure impartiality in justice without using the civil justice system for victims of sexual violence in the military, the status of the implementation of the recommendations to decrease criminalization of the homeless, and the deadly use of force by the police, including the use of tasers.
GEORGE TUGUSHI, Committee Vice-Chairperson, on the issue of the principle of non-refoulement, asked about the monitoring and accountability tools in place to ensure that border guards asked fear of persecution questions. Were there any intentions to move forward and stop sentencing people to life in prison without parole, at least for non-violent crimes?
Further Responses by the Delegation
Concerning individuals held in Guantanamo without charge, the delegation stressed that they were held under the law of armed conflict which allowed detention without charge until the end of hostilities; filing charges was not an obligation under the law of armed conflict. Forced feeding was ethical in that it was preserving life, was administered humanely and only when it was necessary to save lives. Registration of detainees was a standard practice in each conflict, and the registration numbers were shared with the International Committee of the Red Cross.
The majority of detainees in Guantanamo were Yemeni; the President had lifted the moratorium from transfer of detainees to Yemen and each case was reviewed on an individual basis. All interrogations by the military and the CIA were conducted in accordance with the Army Field Manual. Eliminating sexual assault was a priority for the Army; the Secretary of Defence had ordered review of the Army while Congress had initiated two panels on the question of sexual abuse in the armed forces.
The High Value Detainee Interrogation Group was composed of the Federal Bureau of Interrogation, the CIA, Department of Defence and the Army and was not authorised to use any interrogation technique that was not lawfully used by their home agencies.
On the question on whether the Durham investigation had interviewed victims of torture committed by the CIA, the delegation said that this had not led to public charges and that it was not possible to reveal the identity of the 97 interviewed witnesses.
The Justice Department used all methods available to ensure accountability of the police for the use of force and in the past years 20 cases had been opened for excessive use of force, and 330 law enforcement officials had been criminally prosecuted.
Unaccompanied children in families were given an opportunity to express claim of fear from return to their country of origin; immigration judges additionally evaluated this claim of fear.
In 2005 and 2006, the Supreme Court had made a decision that Article 3 bound the United States in all times and in all contexts and prolonged mental pain and suffering constituted a breach of this article which could be prosecuted in the United States. The key question was the definition and precise meaning of mental harm and prolonged mental pain; the provisions of investigation techniques contained in the Army Field Manual were included exactly for the purpose of directing the law enforcement and service personnel as to what conduct was acceptable.
The United States expressed unequivocal commitment to abide by the universal prohibition of torture and ill-treatment everywhere. Violence against women was a world-wide scourge which also affected the United States, for which the silver bullet unfortunately did not exist.
GEORGE TUGUSHI, Committee Vice-Chairperson, thanked the delegation for its engagement with the Committee and agreed with a member of the delegation that the best test for any nation committed to this Convention and to the rule of law was not whether it ever made mistakes, but whether and how it corrected them.
KEITH HARPER, Representative of the United States to the Human Rights Council, said that the United States and the Committee shared common ground and common values. The United States was committed to eradicating torture and considered that torture and cruel and inhumane treatment everywhere were illegal. The United States supported and appreciated the robust engagement of the Committee Experts even on issues of disagreement. This valuable dialogue would continue also at the Human Rights Council Universal Periodic Review in six months’ time.
For use of the information media; not an official record