Torture and the United States

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Torture in the United States include documented and alleged cases inside the United States and outside the border by government personnel. Note that such incidents are not necessarily the policy of or done with the approval of the United States government.

Contents 1 Legislation and treaties regarding torture 1.1 Domestic Legislation 1.2 Prohibition under International Law 1.3 UN Convention Against Torture 1.4 Ending judicial review of torture against terror suspects 1.5 Military field manuals 2 Historical practices of torture 2.1 Slavery 2.2 Lynching 2.3 "Third degree" 2.4 Torture abroad during the Cold War 2.4.1 US intelligence training manuals 3 Recent allegations of torture 3.1 Domestic police and prisons 3.1.1 Stun belts 3.2 Border Patrol and immigration detention 4 Recent allegations of torture abroad 4.1 Forms of torture and abuse 4.2 Application of Fifth Amendment to overseas torture 4.3 Torture, interrogation and prisons in the War on Terror 4.3.1 "Stress and duress" 4.3.2 Legal analyses 4.3.3 Authorization and methods of torture and abuse 4.3.4 Prosecutions 4.4 Secret detention facilities 4.5 Torture and extraordinary rendition 5 See also 6 References 7 Sources

[edit] Legislation and treaties regarding torture

Torture is strictly illegal and punishable within US territorial bounds. The potential for prosecution of abuse occurring on foreign soil, outside of usual US territorial jurisdiction, is difficult.

[edit] Domestic Legislation

Torture is prohibited under 18 U.S.C. § 2340. The definition of torture used is as follows:

1. "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
2. "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from - (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

In 2004 the Immigration and Nationality Act was amended to make aliens who, whilst abroad, have committed torture, extra-judicial killings, or particularly severe violations of religious freedom, inadmissible to the United States, and therefore deportable.^[1]

[edit] Prohibition under International Law

Torture in all forms is banned by the 1948 Universal Declaration of Human Rights (UDHR), which the United States participated in drafting. The United States is a party to the following conventions (international treaties) which prohibit torture: the American Convention on Human Rights (signed 1977) and the International Covenant on Civil and Political Rights (signed 1977; ratified 1992). It has neither signed nor ratified the Inter-American Convention to Prevent and Punish Torture[1].

[edit] UN Convention Against Torture

Main article: UN Convention Against Torture

The United States is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which originated in the United Nations General Assembly on December 10, 1984, and signed by the President Ronald Reagan on April 18, 1988. Ratification by the Senate took place on October 27, 1990. The Senate put forward a number of reservations including:

• Restricting the definition of "cruel, inhuman or degrading treatment or punishment" to the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution
• Restricting acts of torture to the following list: "(1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality."^[2]

International law defines torture during an armed conflict as a war crime. It also mandates that any person involved in ordering, allowing and even insuffuciently preventing and prosecuting war crimes is criminally liable under the command responsibility doctrine.

[edit] Ending judicial review of torture against terror suspects

Main article: Military Commissions Act

In October 2006, the United States enacted the Military Commissions Act of 2006, authorizing the executive to conduct military tribunals of so-called enemy combatants and to hold them indefinitely without judicial review under the terms of habeas corpus. Testimony coerced through humiliating or degrading treatment would be admissible in the tribunals. Amnesty International and numerous commentators have criticized the Act for approving a system that uses torture, destroying the mechanisms for judicial review created by Hamdan v. Rumsfeld, and creating a parallel legal system below international standards.^[3][4][5] Part of the act was an amendment which retroactively rewrote the War Crimes Act effectively making policy makers, i.e. politicians and military leaders, and those applying policy, i.e. CIA interogators and soldiers, no longer subject to legal prosecution under US law for what before the amendment was defined as a war crime, such as torture.^[6] Because of that critics describe the MCA as an amnesty law for crimes committed in the War on Terror.^[7][8]

[edit] Military field manuals

Main article: U.S. Army Field Manuals

In late 2006, the military issued updated field manuals on intelligence collection (FM 2-22.3. Human Intelligence Collector Operations, September 2006) and counterinsurgency (FM 3-24. Counterinsurgency, December 2006). Both manuals reiterated that "no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in US law."^[9] Specific techniques described as prohibited in the intelligence collection manual include:

• Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner.
• Placing hoods or sacks over the head of a detainee; using duct tape over the eyes.
• Applying beatings, electric shock, burns, or other forms of physical pain.
• Waterboarding
• Using military working dogs.
• Inducing hypothermia or heat injury.
• Conducting mock executions.
• Depriving the detainee of necessary food, water, or medical care.^[10]

[edit] Historical practices of torture

[edit] Slavery

Main article: History of slavery in the United States

People living as slaves were regulated both in their service and when walking in public by legally authorized violence. On large plantations, slave overseers were authorized to whip and brutalize noncompliant slaves. Slave codes authorized, indemnified or even required the use of violence and were long criticized by abolitionists for their brutality. Slaves as well as free Blacks were regulated by the Black Codes, and had their movements regulated by patrollers, conscripted from the white population, who were allowed to use summary punishment against escapees, which included maiming or killing them. Slaves risked losing members of their families as they were traded for profit or to pay debts.

[edit] Lynching

Main article: Lynching in the United States

Lynching was a public act of murder, torture and both pre- and post-mortem mutilation carried out by crowds, primarily against African Americans. A form of mob violence and putative justice, usually involving (but by no means restricted to) the illegal hanging of suspected criminals, lynch law cast its pall over the Southern United States from the mid-19th to the mid-20th centuries. Victims were usually black men, often accused of acting uppity towards, assaulting, having sex with, or raping white people. The murders of 4,743 people who were lynched in the United States between 1882 and 1968 were not often publicized. It is likely that many more unrecorded lynchings occurred in this period.

Most lynchings were inspired by unsolved crime, racism, and innuendo. 3,500 of its victims were African Americans. Lynchings took place in every state except four, but were concentrated in the Cotton Belt (Mississippi, Georgia, Alabama, Texas and Louisiana). ^[11] Forms of violence and torture included genital mutilation, strangulation and the severing of limbs. Both police and lawmakers were frequently complicit in lynching, releasing prisoners to lynch crowds and/or refusing to prosecute the participants in a public act of murder. Despite numerous attempts to do so, federal anti-lynching legislation was consistently defeated.^[12]

[edit] "Third degree"

The use of "third degree interrogation" techniques in order to compell confession, ranging from "pyschological duress such as prolonged confinement to extreme violence and torture", was widespread and considered acceptable in early American policing.^[13]:47 In 1910 the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions.^[14]:42 In response to this, "covert third degree torture" became popular, since it left no signs of physical abuse. The publication of the Wickersham Commission's "Report on Lawlessness in Law Enforcement" in 1931 highlighted the widespread use of covert third degree torture by the police to force confessions, and lead to a subsequent decline in its use over the 1930s and 1940s.^[14]:38

[edit] Torture abroad during the Cold War

American officials were involved in programs of systematic mass incarceration, "disappearances," and torture from the 1960s to the 1980s. From 1967 to at least 1972, the Central Intelligence Agency coordinated the Phoenix Program, a systematic attempt to destroy the Communist National Front for the Liberation of South Vietnam ("Viet Cong") through the use of torture and assassination. The program operated more that 40 detention centers and was responsible for the deaths of more than 20,000 people.^[15] American trainers and intelligence coordination officials supported the internal security apparatus of the regimes of South America's southern cone as they carried out kidnappings and torture known as "disappearances" during the 1970s and 1980s, including as part of Operation Condor. Similar support was provided to right-wing governments of Central America, particularly in the 1980s. Numerous participants in these abuses were trained by the US Army School of the Americas.^[16] Americans were present as supervisors in the Mariona Prison in San Salvador, El Salvador, well-known for a wide variety of forms of torture.^[17]

[edit] US intelligence training manuals

Main article: U.S. Army and CIA interrogation manuals

The Torture Manuals was a nickname for seven training manuals which had excerpts declassified to the public on September 20, 1996, by the Pentagon.

One was the 1963 CIA document, KUBARK Counterintelligence Interrogation which describes interrogation techniques, including, among other things, "coercive counterintelligence interrogation of resistant sources". The CIA techniques involved were used in the CIA's Phoenix Program in South Vietnam. Eventually the CIA’s psychological methods were spread worldwide through the U.S. Agency for International Development’s Public Safety program and U.S. Army Mobile Training Teams.^[18]

Other manuals were prepared by the U.S. military and used between 1987 and 1991 for intelligence training courses at the U.S. Army School of the Americas (SOA). The manuals were also distributed by Special Forces Mobile Training teams to military personnel and intelligence schools in Colombia, Ecuador, El Salvador, Guatemala, and Peru.

The manuals advise that torture techniques can backfire and that the threat of pain is often more effective than pain itself. The manuals describe coercive techniques to be used "to induce psychological regression in the subject by bringing a superior outside force to bear on his will to resist." These techniques include prolonged constraint, prolonged exertion, extremes of heat, cold, or moisture, deprivation of food or sleep, disrupting routines, solitary confinement, threats of pain, deprivation of sensory stimuli, hypnosis, and use of drugs or placebos. ^[19]

See also Office of Public Safety.

[edit] Recent allegations of torture

[edit] Domestic police and prisons

In more modern policing, police brutality has at times escalated to torture. Police officials have generally described these cases as aberrations or the actions of criminals in police uniform, as New York Police Commissioner Howard Safir described the attack on Louima.^[20] Police brutality critics, such as law professor Susan Bandes, have argued that such a view is erroneous and, "allows police brutality to flourish in a number of ways, including making it easier to discount individual stories of police brutality, and weakening the case for any kind of systemic reform."^[21]

In the 1970s and 1980s the Chicago Police Department's Area 2 unit under Commander Jon Burge repeatedly used electroshock, near-suffocation by plastic bags and excessive beating on suspects. The City of Chicago's Office of Professional Standards (OPS) concluded that the physical abuse was systematic and, "The type of abuse described was not limited to the usual beating, but went into such esoteric areas as psychological techniques and planned torture."^[22]

In 1983 Texas sheriff James Parker and three of his deputies were convicted for conspiring to use waterboarding to force confessions. The complaint said they "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."^[23] The sheriff was sentenced to ten years in prison, and the deputies to four years.^[23][24]

In 1997 Abner Louima was sodomized with a plunger by New York police.^[25] In September 1997, two former officers from the Adelanto Police Department, San Bernardino County, California, were jailed for two years on federal charges, after pleading guilty to beating a suspect during questioning and forcing another man to lick blood off the floor in 1994.^[26]

From the year 2000 onwards the Supermax facility at the Maine State Prison was the scene of video-taped forcible extractions that Lance Tapley in the Portland Phoenix wrote "look[ed] like torture."^[27] Additionally, audio recordings were made of the torture of Lester Siler in Campbell County, Tennessee.

In 2005 a Channel 4 documentary "Torture: America’s Brutal Prisons" showed video of naked prisoners being beaten, bitten by dogs, and stun with Taser guns and electric cattle prods.^[28][29] In one case a prisoner is strapped to a restraint chair and left for sixteen hours; two hours after being unshackled he dies from a blood clot. In another, mentally ill prisoner Charles Agster is suffocated to death. Another prisoner is found with a broken neck, broken toes and internal injuries following an argument with guards; after one month in a coma he dies from septicaemia. Fire extinguisher sized canisters of pepper spray are used to cover prisoners with chemicals, and they are then left, resulting in second degree burns. Photos are shown of Frank Valdes, a convicted killer on Death Row, who was beaten to death after writing to local Florida newspapers with allegations of prison officer corruption and brutality.

[edit] Stun belts

Amnesty International singled out stun belts--which produce an eight-second 50,000 volt electric shock to incapacitate their wearer temporarily--as a mechanism of torture. More than 1,800 such weapons, which are banned in the United Kingdom, were sold to U.S. prisons by 1999. According to Amnesty International, they have been used on defendants who conducted their own legal defense, minimum security prisoners who are HIV positive or have AIDS in Louisiana, and used in abuse by guards at the Red Onion State Prison in Virginia.^[30]

[edit] Border Patrol and immigration detention

The U.S. Border Patrol interdicts people crossing the border and maintains checkpoints and carries out raids in border regions. Human Rights Watch has documented severe human rights abuses by the Border Patrol, "including unjustified killing, torture, and rape, and routine beatings, rough physical treatment, and racially motivated verbal abuse."^[31]

Detained immigrants, including refugees seeking asylum, at the Esmor Inc. facility in Elizabeth, New Jersey, rebelled after practices of verbal and physical abuse, humiliation and corporal punishment. After the uprising, two dozen of them were beaten, stripped, forced to crawl through a gauntlet of officers, and made to chant, “America is number one.”^[32]

A report by the Justice Department Office of the Inspector General on the experience of 762 post-9/11 detainees found confirmed the physical and verbal abuse of detainees. On arrival at the Metropolitan Detention Center in Brooklyn, New York, the detainees were slammed face first into a wall against a shirt with an American flag; the bloodstain left behind was described by one officer as the print of bloody noses and a mouth. Once inside they were threatened with detention for the rest of their lives, verbally abused, exposed to cold, deprived of sleep, and had their hands, cuffed arms, and fingers severely twisted.^[33]

[edit] Recent allegations of torture abroad

[edit] Forms of torture and abuse

Certain practices of the United States military, civilian agencies such as the CIA, and private contractors have been condemned both domestically and internationally as torture. A fierce debate regarding non-standard interrogation techniques exists within the US civilian and military intelligence community, with no general consensus as to what practices under what conditions are acceptable.

These practices have resulted in a number of deaths. According to Human Rights First, at least as many as 46 detainees have been tortured to death in U.S. custody in Iraq and Afghanistan. [2]

[edit] Application of Fifth Amendment to overseas torture

In 1999 a U.S. court found that the Fifth Amendment does not apply in the case of overseas torture of aliens. Jennifer Harbury, a U.S. national whose husband Efraín Bámaca Velásquez had been tortured and murdered by CIA officials in Guatemala, complained that these actions violated her husband's Fifth Amendment right not to be deprived of life or liberty without due process of law. On December 12th 2000 the Court of Appeals for the District Court of Columbia rejected this claim, citing a lack of jurisdiction, since the events were planned and controlled in the United States, but the actual torture and murder occurred in Guatemala, a location where the U.S. did not exercise "de-facto political control".^[34]

[edit] Torture, interrogation and prisons in the War on Terror

Main articles: Abu Ghraib torture and prisoner abuse, Bagram torture and prisoner abuse, Criticisms of the War on Terrorism, and Enhanced interrogation techniques

[edit] "Stress and duress"

In 2003 and 2004 there was substantial controversy over the "stress and duress" methods that were used in the U.S.'s War on Terrorism, that had been sanctioned by the U.S. Executive branch of government at Cabinet level ^[35]. Similar methods in 1978 were ruled by ECHR to be inhuman and degrading treatment, but not torture, when used by the U.K. in the early 1970s in Northern Ireland. CIA agents have anonymously confirmed to the Washington Post in a December 26, 2002 report that the CIA routinely uses so-called "stress and duress" interrogation techniques, which are claimed by human rights organisations to be acts of torture, in the US-led War on Terrorism. These sources state that CIA and military personnel beat up uncooperative suspects, confine them in cramped quarters, duct tape them to stretchers, and use other restraints which maintain the subject in an awkward and painful position for long periods of time.^[36] The phrase 'torture light' has been reported in the media and has been taken to mean acts that would not be legally defined as torture. Techniques similar to "stress and duress" were used by the UK in the early 1970s and were ruled to be "inhuman and degrading treatment" but not torture by the European Court of Human Rights. While this is in no way binding on the United States, it is seen as indicative of the state of international law on what constitutes torture.

Some techniques within the "stress and duress" category, such as water boarding, have long been considered as torture, by both the United States government and human rights groups.^[37] In its annual “Country Reports on Human Rights Practices,” the U.S. State Department has described the following practices as torture:

• stripping and blindfolding of prisoners (Egypt)
• subjecting prisoners to prolonged sun exposure in high temperatures and tying of hands and feet for extended periods (Eritrea)
• sleep deprivation and "suspension for long periods in contorted positions" (Iran)
• sleep deprivation and solitary confinement (Jordan)
• prolonged standing and isolation (Turkey)^[38]

[edit] Legal analyses

In June 2004, the Wall Street Journal, the Washington Post, and the New York Times obtained copies of legal analyses prepared for the CIA and the Justice Department in 2002 which developed a legal basis for the use of torture by US interrogators if acting under the directive of the President of the United States. The legal definition of torture by the Justice Department tightly narrowed to define as torture only actions which "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death", and argued that actions that inflict any lesser pain, including moderate or fleeting pain, do not necessarily constitute torture.

It is the position of the United States government that the legal memoranda constituted only permissible legal research, and did not signify the intent of the United States to use torture which it opposes. Secretary of Defense Donald Rumsfeld has complained about this prominent newspaper coverage and its implications^[35]. However, many influential U.S. thinkers also believe that Rumsfeld himself is a major part of the problem, quote the New York Times columnist Bob Herbert:

... there is also the grotesque and deeply shameful issue that will always be a part of Mr. Rumsfeld's legacy -- the manner in which American troops have treated prisoners under their control in Iraq, Afghanistan and Guantánamo Bay, Cuba. There is no longer any doubt that large numbers of troops responsible for guarding and interrogating detainees somehow loosed their moorings to humanity, and began behaving as sadists, perverts and criminals.

– Bob Herbert, ^[39]

[edit] Authorization and methods of torture and abuse

The Post article continues that sensory deprivation, through the use of hoods and spraypainted goggles, sleep deprivation, and selective use of painkillers for at least one captive who was shot in the groin during his apprehension are also used. The agents also indicate in the report that the CIA as a matter of course hands suspects over to foreign intelligence services with far fewer qualms about torture for more intensive interrogation.^[36] (The act of handing a suspect to another organization or country, where it is foreseeable that torture would occur, is a violation of the Convention against torture; see torture by proxy.) The Post reported that one US official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."^[36]

Based on the Justice Department analyses, Defense Secretary Donald Rumsfeld later approved in 2003 the use of 24 classified interrogation techniques for use on detainees at Guantanamo Bay which after use on one prisoner were withdrawn. In court filings made public in January 2007, FBI agents reported that detainees at Guantanamo Bay were: chained in a fetal position to the floor for at least 18 hours, urinating and defecating on themselves; subjected to extremes of temperature; gagged with duct tape; held in stress positions while shackled; and subjected to loud music and flashing lights.^[40][41] Senior administration officials have repeatedly denied that torture is being conducted in the detention camps at Guantanamo Bay.

Allegations emerged that in the Coalition occupation of Iraq after the second Gulf war, there was extensive use of torture techniques, allegedly supported by American military intelligence agents, in Iraqi jails such as Abu Ghraib and others. In 2004 photos showing humiliation and abuse of prisoners leaked from Abu Ghraib prison, causing a political and media scandal in the US.

[edit] Prosecutions

In January 2006 Lewis E. Welshofer Jr. was convicted of negligent homicide for the torturing to death of Abed Hamed Mowhoush, a general in the Iraqi Air Force who had voluntarily surrendered to American forces. As punishment Welshofer received 60 days of barrack confinement and a 6,000 US$ fine.^[42]

[edit] Secret detention facilities

Main article: Black site

Both United States citizens and foreign nationals are occasionally captured outside of the United States and transferred to secret US administered detention facilities, sometimes being held incommunicado for periods of months or years. Overseas detention facilities are known to be or to have been maintained at least in Thailand, the Philippines, Pakistan, Afghanistan, Uzbekistan, Azerbaijan, Jordan, Egypt, Iraq, Kuwait, UAE, Saudi Arabia, Morocco, Cyprus, Cuba, Diego Garcia, and unspecified South Pacific island nation(s). In addition, individuals are suspected to be or to have been held in temporary or permanent US controlled facilities in Indonesia, El Salvador, Nigeria, Equatorial Guinea, Libya, Israel, Denmark, Poland, Romania, Bulgaria, Albania, Hungary, Germany, and Scotland. There are also allegations that persons categorized as prisoners of war have been tortured, abused or humiliated; or otherwise have had their rights afforded by the Geneva Convention violated.

[edit] Torture and extraordinary rendition

Main article: Extraordinary rendition

"Extraordinary rendition" and "irregular rendition" have been used to describe the extrajudicial transfer of a person from one state to another, and "Torture by proxy" is used by some critics to describe extraordinary rendition by the United States, with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that amount to torture. Critics state that torture has occurred with the knowledge or acquiescence of the United States. However United States Secretary of State Condoleezza Rice stated in an April 2006 radio interview that the United States does not transfer people to places where they know they will be tortured.^[43][44][45]

[edit] See also

• Amnesty law
• At the Center of the Storm: My Years at the CIA
• Command responsibility
• Crime against humanity
• Criminal law
• Enhanced interrogation
• Human rights in the United States
• International humanitarian law
• International Law
• U.S. Army and CIA interrogation manuals
• Universal jurisdiction
• Uses of torture in recent times
• War crimes

[edit] References

[edit] Sources

• We Are All Torturers Now by Mark Danner New York Times, 6 January 2005 same article on Danner's website
• CIA chief sacked for opposing torture by Sarah Baxter and Michael Smith, The Sunday Times, February 12, 2006