A Double Standard On Torture:
The U.S. Should Practice What We Preach
by Marjorie Cohn
March 17, 2003
The Bush administration has a double standard on torture and human rights violations as it prosecutes the "war on terror." While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a "different fate," so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.
The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary "Massacre in Afghanistan" was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport - dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States' signature on this treaty last year.
A week after the documentary was shown in Germany, the Washington Post reported that "stress and duress" tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA's secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: "While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary." At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes "Americans with direct knowledge and others who have witnessed the treatment," who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government's agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh's mistreatment while in captivity.
The Post also reported in March 2002 that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as "rendition." One U.S. diplomat is quoted as saying: "These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can't do on U.S. soil."
These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken "to clarify that the use of torture is not US policy." Roth reminded Bush that, "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven't ratified the Torture Convention. The U.S. government's practice of torture is unjustifiable and a clear violation of international law.
The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off." Indeed, in his speech, Bush said: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way - they are no longer a problem to the United States and our friends and allies." Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.
Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft's order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government's international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.
Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.
Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.
The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.
While decrying human rights violations in other countries as it furthers Washington's agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: "The United States cannot expect to reap the benefits of internationally recognized human rights - in the form of greater worldwide stability and respect for people - without being willing to adhere to them itself." During his speech, Bush celebrated "the cause of human dignity." His words, however, ring hollow.
Marjorie Cohn is a Professor of Law at the Thomas Jefferson School of Law in San Diego, and is executive vice president of the National Lawyers Guild.