While the U.S. record on “enhanced interrogation” outside its borders was a major part of the review, the country’s handling of domestic issues, including the criminalization of homelessness and the use of deadly force by police, was also scrutinized.
WASHINGTON — Presenting before a major United Nations review this week, U.S. officials repeatedly expressed regret for post-9/11 government interrogation practices that “crossed the line” into torture.
The officials denounced “enhanced interrogation” practices as both un-American and unconstitutional. Such statements were accompanied by pledges that the United States and federal government have learned from these past mistakes, and by the announcement of one major policy change.
The formal discussions took place Wednesday and Thursday in Geneva, part of a four-yearly review of U.S. compliance with the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment by States. The hearings, held before a panel of independent experts known as the Committee Against Torture, include formal reports by member states, civil society and the committee, as well as discussions between panel members, state representatives and civil society members.
“[W]e recognize that no nation is perfect, ours included,” Ambassador Keith Harper, the U.S. representative to the U.N. Human Rights Council, said in his opening statement on Wednesday. “But we have learned from the past, and have strengthened our implementation of this Convention.”
Others echoed this theme, including in the United States’ 65-page formal report to the committee.
“A little more than 10 years ago, our government was employing interrogation methods that, as President Obama has said, any fair minded person would believe were torture,” Tom Malinowski, an assistant secretary at the State Department, stated.
“At the same time, the test for any nation committed to this Convention and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.”
Though such contrition is striking to hear in an international forum, President Obama laid the groundwork for these statements years ago. Indeed, on this third day in office, in fulfillment of a campaign pledge and a clear repudiation of the policies of the previous administration, Obama signed an executive order aimed at realigning U.S. interrogation policy with the Convention Against Torture.
Yet rights advocates have since noted that Obama’s order had not fully reversed course from certain George W. Bush-era interrogation policies. While the mandate firmly outlawed “enhanced interrogation” and torture within the U.S., the new rules appeared to extend contentious standing policy that exempted interrogators from these guidelines outside of U.S. territory.
In the months leading up to the committee’s review, a debate reportedly took place within the Obama administration over whether to change policy on this issue.
Specifically, this dispute revolves around interpretations of the convention’s Article 16. This section compels member states to “prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment … committed by or at the instigation of or with the consent or acquiescence of a public official.”
This spring, The New York Times reported that it was “unlikely” the U.S. would change the Bush administration’s view that Article 16 meant that U.S. obligations under the Convention Against Torture applied only within U.S. territory. Yet this week, those pushing for change won out – for the most part.
“[W]e understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations … extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘all places that the State Party controls as a governmental authority,’” Mary E. McLeod, an acting legal adviser at the State Department, told the panelists at the Committee Against Torture, according to written remarks.
“[A] time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict.”
McLeod also acknowledged that the U.S. “currently exercises such control” at the naval base at Guantanamo Bay, Cuba, as well as aboard all U.S.-registered ships and aircraft.
Rights groups have lauded the shift in policy. Still, many are now expressing concern that the new guidance is not the simple, comprehensive declaration they were seeking. Rather, some suggest, the government appears to be assuring itself – and future administrations – of some legal flexibility.
The new policies, for instance, do not appear to cover unofficial “black sites,” run by intelligence agencies, or situations in which a detainee may be held temporarily, whether by U.S. officials or others.
“While it is important that [the United States] clarified that it will abide by treaty obligations in places like Guantanamo, it refused to accept that it applies wherever the U.S. has effective control, the standard that would give full effect to the treaty,” Laura Pitter, a senior national security counsel with Human Rights Watch, told MintPress News from Geneva.
“This would be a clear indication that it believes treaty obligations apply to any U.S. detention centers overseas. The carefully limited language does little to allay concerns that the U.S. is looking for wiggle room in terms of how it applies treaty obligations outside U.S. borders.”
Further, the Convention Against Torture directs member states to ensure accountability for past abuses. But despite the U.S. public acknowledgements of mistakes in the context of the 9/11 attacks, Pitter says the Obama administration is falling “miserably short” in this regard.
“The U.S. continues to inadequately comprehend the degree to which failing to thoroughly investigate and prosecute those responsible for torture of detainees in U.S. custody undermines the global ban on torture,” she said.
“Though it worked very hard [during the review] to try and put the past behind it, as was clear from the committee’s questions, this issue of is not going away.”
Obligations at home
Much of the U.S. hearing before the Committee Against Torture focused on U.S. policies in the context of the government’s reaction to the 9/11 attacks. This is understandable, given the intense public discussion that continues to take place around the specific and extreme issue of torture.
Yet the convention’s obligations regarding cruel and degrading practices that don’t amount to torture are also significant, and are every bit as binding on a member country. While much will be made of the U.S. policy change regarding its adherence to the Convention Against Torture’s obligations beyond U.S. borders, this week’s hearing also focused on ongoing policies and practices taking place within the country and well outside the ambit of war.
Priority domestic issues included, for instance, questions from the panel members on the ongoing expansion of family detention for migrants from Central America, a practice that itself constitutes a significant and recent policy change. The U.S. delegation was also asked about how the government is dealing with concerns over juvenile confinement in adult prisons, problems faced by LGBT inmates, and the use of deadly force by police officers.
During past reviews, the Committee Against Torture has made recommendations to the U.S. regarding ways to decrease what it and advocates refer to as the criminalization of homelessness. This includes, for instance, laws that prohibit begging, lying down in public spaces, or “loitering,” and the panel asked for a progress update on these recommendations.
Advocates say these problems have worsened. Even as the financial downturn in recent years has simultaneously squeezed state budgets and led more people to lose their jobs and homes, the official response has been to strengthen enforcement – to make homelessness more difficult.
Over the past three years, for instance, the number of U.S. cities that have banned sleeping in cars has grown by 119 percent, according to findings released this summer. Bans on sleeping or camping in public have likewise risen by 60 percent during that same time.
“The U.S. government began its testimony by emphasizing it shares the committee’s goal of eradicating torture and cruel, inhuman and degrading treatment everywhere,” Eric S. Tars, a senior attorney with the National Law Center on Homelessness & Poverty, told MintPress in an email from Geneva.
“We are pleased the committee emphasized back that this means not just at Guantanamo, but on the streets of America, where millions of homeless Americans face the daily cruelty of being criminalized just for trying to survive.”
Tars points to laws and regulations that seek to make it increasingly difficult to eat or drink in public spaces, or to access public bathrooms. Such measures, critics say, infringe on basic rights – and are implicitly covered by the Convention Against Torture.
“Whether caused by guards in prison or police harassment on the streets,” Tars said, “sleep deprivation, hunger, thirst and other degrading treatment are against our own values, and the federal government needs to step up its commitment if it really wants to end torture everywhere.”