Torture in the United States includes documented and alleged cases of torture both inside the United States and outside its borders by U.S. government personnel. While the term "torture" is defined in numerous places, including dictionaries and encyclopedias of various nations or cultures, this article only addresses the legal definition of the term, under the codified and case law of the United States of America.[nb 1] After the US dismissed United Nations concerns about torture, one U.K. judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilised nations'.[1]
Torture is illegal and punishable within U.S territorial bounds. Prosecution of abuse occurring on foreign soil, outside of usual U.S. territorial jurisdiction, is difficult.
It is debated as to whether or not torture as a punishment falls under the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted "
The US Supreme Court has held since at least the 1890s that punishments that involved torture are forbidden under the Eighth Amendment.[2]
Torture is also prohibited under 18 U.S.C. § 2340. The definition of torture used is as follows:
In 2004 the Immigration and Nationality Act was amended to make aliens who, whilst abroad, have committed torture, extrajudicial killings, or particularly severe violations of religious freedom, inadmissible to the United States, and therefore deportable.[3]
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) that 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.[4] 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.
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.
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.[7][8][9] Part of the act was an amendment that retroactively rewrote the War Crimes Act, effectively making policy makers, i.e., politicians and military leaders, and those applying policy, i.e., Central Intelligence Agency interrogators and US Army soldiers, no longer subject to legal prosecution under U.S. law for what, before the amendment, was defined as a war crime, such as torture.[10] Because of that critics describe the MCA as an amnesty law for crimes committed in the "War on Terror".[11][12]
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 U.S. law."[13] Specific techniques prohibited in the intelligence collection manual include:
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.
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 ostensible 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 (being insolent), 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).[15] 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.[16]
The use of "third degree interrogation" techniques in order to compel confession, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread and considered acceptable in early American policing.[17]: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.[18]: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 led to a subsequent decline in its use over the 1930s and 1940s.[18]:38
American officials were involved in counter-insurgency programs in which they did not prevent their allies, such as the ARVN from using torture during the 1960s to the 1980s. From 1967 to at least 1972, the Central Intelligence Agency coordinated the Phoenix Program, which targeted the infrastructure of the Communist National Front for the Liberation of South Vietnam ("Viet Cong"). The program killed 26,000 Viet Cong and captured over 60,000.[19] Critics of the program assert that many of those identified by the program as Viet Cong members were actually civilians, who when captured suffered torture by the South Vietnamese Army, under CIA supervision.[20]
American trainers and intelligence coordination officials supported the internal security apparatus of the regimes of South America's southern cone as those regimes 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 U.S. Army School of the Americas.[21] Americans were present as supervisors in the Mariona Prison in San Salvador, El Salvador, well-known for a wide variety of forms of torture.[22] One author, Jennifer Harbury, focussing on Central America, concluded that "A review of the materials leads relentlessly to just one conclusion: that the CIA and related U.S. intelligence agencies have since their inception engaged in the widespread practice of torture, either directly or through well-paid proxies."[23] More broadly, others have argued that "torture has always been a staple of U.S. military interventions."[24]
| Torture Country | US-trained Military/Police | US military Aid (1946–1975) – $US(1979) |
|---|---|---|
| Greece | 14,144 | 2,794,900,000 |
| Portugal | 2,997 | 361,900,000 |
| Spain | 9,872 | 920,200,000 |
| Turkey | 18,900 | 4,576,400,00 |
| Indonesia | 4,757 | 218,200,000 |
| Philippines | 15,245 | 805,800,000 |
| South Korea | 32,479 | 6,542,300,000 |
| South Vietnam | 35,788 | 16,490,500,000 |
| Iran | 10,807 | 1,412,500,000 |
| Saudi Arabia | 1,380 | 295,900,000 |
| Morocco | 2,209 | 138,700,000 |
| Tunisia | 636 | 62,400,000 |
| Venezuela | 5,341 | 142,200,000 |
| Uruguay | 2,537 | 85,900,000 |
| Paraguay | 1,435 | 26,400,000 |
| Peru | 6,734 | 193,500,000 |
| Nicaragua | 4,897 | 25,500,000 |
| Mexico | 738 | 14,300,000 |
| Haiti | 567 | 4,200,000 |
| Guatemala | 3,030 | 39,300,000 |
| Dominican Republic | 3,705 | 38,200,000 |
| Colombia | 6,200 | 154,800,00 |
| Chile | 6,328 | 216,900,000 |
| Brazil | 8,448 | 603,100,00 |
| Bolivia | 3,956 | 56,600,000 |
| Argentina | 3,676 | 230,300,000 |
Source: The Washington Connection and Third World Fascism, Chomsky N, Herman ES, Spokesman (1979), ISBN 0896080900, pg 361.
The Torture Manuals was a nickname for seven training manuals that 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.[26]
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.[27]
In a July 2002 memo sent to the Pentagon's chief lawyer by the military's Joint Personnel Recovery Agency, or JPRA, the military agency that provided advice on harsh interrogation techniques for use against terrorism suspects, not only referred to the application of extreme duress as "torture" but warned that it would produce "unreliable information".[28][29]
See also Office of Public Safety.
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.[30] Police brutality critics, such as law professor Susan Bandes, have argued that such a view is erroneous and that it "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."[31]
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."[32]
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."[33] The sheriff was sentenced to ten years in prison, and the deputies to four years.[33][34]
In 1997 Abner Louima was sodomized with a plunger by New York police.[35] 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.[36]
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."[37] 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 stunned with Taser guns and electric cattle prods.[38][39] 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. Many of the segments in the documentary were several years old, e.g. from 1996, and were originally released to lawyers seeking justice for the victims of the offenses shown.[39]
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.[40]
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."[41]
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.”[42]
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.[43]
... The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy...
— George W. Bush, "Statement in Support of Victims of Torture". White House Press Release. 23 June 2003. http://georgewbush-whitehouse.archives.gov/news/releases/2003/06/print/20030626-3.html.
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 U.S. 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 8 detainees have been tortured to death in U.S. custody in Iraq and Afghanistan.[44] The pressure to torture has been so strong, that in some cases even U.S. military personnel have committed suicide, such as the case of Alyssa Peterson.
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 12, 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".[45]
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.[46] 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 human rights organizations claim are 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 that maintain the subject in an awkward and painful position for long periods of time.[47] 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.[48] In its annual “Country Reports on Human Rights Practices,” the U.S. State Department has described the following practices as torture:
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. These documents developed a legal basis for the use of torture by U.S. 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.[46] 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, [50]
The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate U.S. prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering," according to a previously secret Justice Department memo released on 24 July 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee, then the Assistant Attorney General for the Office of Legal Counsel, wrote in the memo. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.
Another memo released on the same day advises that "the waterboard," does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush[51] and a then-new Supreme Court ruling "...which raises possible concerns about future U.S. judicial review of the [interrogation] Program."
A third memo instructs interrogators to keep records of sessions that use "enhanced interrogation techniques." The memo is signed by then-CIA director George Tenet and dated January 28, 2003.
The memos were made public by the American Civil Liberties Union, which obtained the three CIA-related documents under Freedom of Information Act requests.[52]
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.[47] (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 U.S. official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."[47]
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.[53][54] Senior administration officials have repeatedly denied that torture is being conducted in the detention camps at Guantanamo Bay. However, the Bush administration explicitly endorsed the use of interrogation techniques such as waterboarding in memos to the CIA,[55] and one Pentagon official has publicly admitted that torture was conducted at Guantanamo Bay.[56]
Manfred Nowak, United Nations Special Rapporteur on torture, said that numerous cases of torture ordered by U.S. officials and perpetrated by U.S. authorities are well documented.
"We possess all the evidence which proves that the torture methods used in interrogation by the U.S. government were explicitly ordered by former U.S. defence minister Donald Rumsfeld...Obviously, these orders were given with the highest U.S. authorities' knowledge." [57]
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 U.S. and the whole world.
Condoleezza Rice, Secretary of State ultimately told the CIA the harsher interrogation tactics were acceptable,[58][59] In 2009 Rice stated, "We never tortured anyone." [60]
On February 14, 2010, in an appearance on ABC's This Week, Vice-President Dick Cheney reiterated his support of waterboarding and enhanced interrogation techniques for captured terrorist suspects, saying, "I was and remain a strong proponent of our enhanced interrogation program."[61]
Pressed by the BBC in 2010 on his personal view of waterboarding, Presidential Advisor Karl Rove said: “I’m proud that we kept the world safer than it was, by the use of these techniques. They’re appropriate, they’re in conformity with our international requirements and with US law.” [62]
In January 2006, Chief Warrant Officer Lewis E. Welshofer Jr. of the 3rd Armored Cavalry Regiment 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. Welshofer received 60 days of barrack confinement and a US$6,000 fine.[63]
Both United States citizens and foreign nationals are occasionally captured outside of the United States and transferred to secret U.S. 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 U.S. 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.
"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 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. 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.[64][65][66]
On April 30, 2009, 62 members of Witness Against Torture, led by Carmen Trotta[67] were arrested at the gates of the White House demanding that the Obama administration support a criminal inquiry into torture under the Bush administration and release innocent detainees still held at Guantanamo. The protesters wearing orange jumpsuits and black hoods, were arrested, and charged with "failure to obey a lawful order" when they refused to leave the White House sidewalk.[68][69]
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) was adopted on 10 December 1984 at the thirty-ninth session of the General Assembly of the United Nations.[70][nb 2] It was registered, and came into force, on 27 June 1987 in accordance with article 27(1) of the Convention.[71]
The United States signed the Convention in the spring of the following year, officially declaring at the time of its signature on 18 April 1988[71] that
The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary.
Thereafter, the United States formally notified the United Nations and its member states, a few months prior to its ratification, that [72]
...nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
The U.S. ratification itself, on 21 October 1994, came some six years after the spring 1988 signature and was subject to numerous (A) reservations, (B) understandings and (C) declarations. These can be read verbatim at the UN treaty website[71] and are parsed here as follows:
By transferring military detainees to Iraqi control, the U.S. appears knowingly to have violated the Convention Against Torture. The Convention proscribes signatory states from transferring a detainee to other countries "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. had received reports of more than a thousand allegations, many of them substantiated by medical evidence, of torture in Iraqi jails. Yet US authorities transferred thousands of prisoners to Iraqi custody, including almost 2,000 who were transferred to the Iraqi government as recently as July 2010.[74]
In the US, an alien seeking protection against deportation under Article 3 of the Convention[nb 9] must establish that it is more likely than not that he will be tortured in the country of removal.[nb 10][75] Thus, the alien seeking to stop his deportation bears the burden of proof (or risk of non-persuasion) to show that torture is "more likely than not" to occur in the destination country.
In re M-B-A, a 2002 decision by the BIA,[76] concerned a 40-year old Nigerian woman who was facing a deportation order due to a drug conviction in the US. She claimed that if returned to Nigeria, she would be imprisoned and tortured as a result of her U.S. conviction.
In her December 1999 hearing before the immigration judge, she presented evidence of Nigeria's Decree No. 33, which authorized imprisonment in her situation. When asked how she knew she would be tortured, she said that some years ago, she had spoken with a Nigerian friend,[nb 11] who had been convicted of a U.S. drug offense and then returned to Nigeria in 1995. The friend had told her that her family had to bring money to the jail for protection, that she slept on the floor and that "you probably get raped" by the guards because they have authority to do "whatever they can do." The friend remained in jail for 2 months until the family paid a bribe. M-B-A did not know if the friend had seen a judge before being incarcerated, or if the friend had been raped in the prison.
M-B-A also presented evidence that she had a chronic ulcer, asthma and suffered from depression; that she was on medication but had no one to help her with medicine if she ended up in jail; that her father was deceased and her mother lived in the UK and that she had no relations to help her in Nigeria, aside from an uncle who had sexually abused her as a child. She claimed she would be beaten and raped in prison by the guards and that most women suffered this treatment, and that her ex-fiance (who lived in Nigeria) would bribe prison guards to beat her.
The full Board of Appeals[nb 12] considered the question of whether M-B-A had carried her burden of proof in showing that it was more likely than not that she would be tortured by a public official upon her return to Nigeria.
In a close 7-6 decision, the Board found that M-B-A had not demonstrated that it was more likely than not that she would be imprisoned in Nigeria on the basis of Decree 33. She did not present any evidence on the question of the extent to which the Decree was enforced, or against whom it was enforced. Her own evidence about enforcement was either (a) her own speculation or (b) based on the conversation with her friend's experience during a different Nigerian regime.[nb 13] The Board stated
she has [not] met her burden of [establishing] that it is more likely than not that her return to Nigeria would result in her detention or imprisonment. . . . [She] must provide some current evidence, or at least more meaningful historical evidence, regarding . . . enforcement of Decree 33 on individuals similarly situation to herself. . . . [Her] case is based on a chain of assumptions and a fear of what might happen, rather than . . . demonstrating that it is more likely than not that she will be subjected to torture. . . .
Accordingly, the BIA held that M-B-A should be deported.
There were two separate dissenting opinions,[nb 14] both of which agreed with the enunciated standard of proof to be used ("more likely than not"), but disagreed over the question of whether the burden had been met by M-B-A. Judge Schmidt's dissent cited the U.S. State Department's report on Nigeria's prison system, reported that one area of abuse in Nigerian prison was the intentional withholding of medical aid or medication. He found on the basis of this report that such withholding (for purposes of e.g. gaining bribes or inflicting punishment) was common in Nigeria and that death from such actions was common. He did not, however, address the majority's assertion that M-B-A had failed to establish, by a preponderance of the evidence, that she would be imprisoned in the first place under Decree No. 33, apparently taking this for granted.[nb 15]
"Torture" within the meaning of the Convention (and 8 Code of Federal Regulations, Section 208.18)[75] is an extreme form of cruel and inhuman treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.[75][77][nb 16]
For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture:[77]
Thus, in the U.S. immigration case of Matter of J-E-, 23 I&N Dec. 291 (BIA 2002)(ID 3466), the indefinite detention of criminal deportees by Haitian authorities did not constitute "torture" where there was no evidence that the authorities intentionally and deliberately detained deportees in order to inflict torture. Likewise, substandard prison conditions in Haiti did not constitute "torture" where there is no evidence that the authorities intentionally created and maintained such conditions in order to inflict torture.[77]
J-E was a Haitian who had entered the U.S. illegally and who was later convicted of selling cocaine. The Government sought to deport him, but J-E claimed that he would be imprisoned and tortured if he were returned to Haiti. Therefore, he argued, Article 3 of the Convention prevented his being deported. The Board set out the five-part test for torture and noted that
While the Convention Against Torture makes a clear distinction between torturous and non torturous acts, actually differentiating between acts of torture and other bad acts is not so obvious. Although not binding on the United States, the opinions of other governmental bodies adjudicating torture claims can be instructive.
The Board thereupon considered Ireland v. United Kingdom, 2 Eur. Ct. H.R. 25 (1978), where the European Court held that suspected terrorists who were subjected to wall standing, hooding, a constant loud and hissing noise and who were deprived of sleep, food and drink by the British Army were subjected to "inhuman and degrading treatment" but not to "torture." It was admitted by all parties that J-E would be indefinitely detained upon return to Haiti. Deportees were held by police in holding cells for weeks before release. However, the State Department report (relied upon by all parties) confirmed that the Haitian government used this policy as a warning and a deterrent, to try to prevent deportees from committing crimes in Haiti.
Thus, Haiti's detention policy in itself appears to be a lawful enforcement sanction ... to protect the populace from criminal acts by Haitians who are forced to return to the country after having been convicted of crimes abroad. ... this policy is a lawful sanction and, therefore, does not constitute torture.... [Also] there is no evidence that Haitian authorities are detaining criminal deportees with the specific intent to inflict severe physical or mental pain or suffering. Nor is there evidence that the procedure is inflicted on criminal deportees for a proscribed purpose, such as obtaining information or a confession.... Haiti's detention practice alone does not constitute torture within the meaning of the regulations.
J-E contended that in any case, the combination of indefinite detention with the admittedly substandard conditions of Haitian prison constitute torture. However, the Board noted that the Convention required that "torture" required a "specific intent" by the accused country in order for torture to result:
Although Haitian authorities are intentionally detaining criminal deportees knowing that the detention facilities are substandard, there is no evidence that they are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture. ... the Haitian prison conditions are the result of budgetary and management problems as well as the country's severe economic difficulties.... there is no effective delivery system [for food]... we cannot find that these inexcusable prison conditions constitute torture within the meaning of the regulatory definition.
Finally, J-E maintained that mistreatment was common in Haitian prison and that he would be subjected to such mistreatment, and that constituted torture. The Board found that there was, in Haiti,
Beating with fists, sticks and belts ... by far the most common form of abuse. However [there are] other forms of mistreatment, such as burning with cigarettes, choking, hooding and ... severe boxing of the ears, which can result in eardrum damage.... there were also isolated allegations of electric shock...[and] withholding medical treatment.
The Board considered all the evidence submitted and concluded that it showed that isolated incidents of torture did occur in Haitian detention facilities. However, this evidence was not sufficient to demonstrate that it was more likely than not that J-E would be subjected to torture upon his detention. There was no evidence that the torture was persistent or widespread; or that the Haitian government used torture as a policy; or that there was no meaningful international oversight.[nb 17]
The Board accordingly held—in yet another 7-6 opinion with substantial dissenting opinions—that J-E had failed to carry his burden of showing that the admitted mistreatment was so pervasive that it therefore was more likely than not that he would be tortured in a Haitian jail, as opposed to being subjected to cruel and inhuman acts that, while despicable, were less than torture within the meaning of the applicable law. Most of the actions reported against Haiti, the Board decided, were sanctioned under Article 16 of the Convention as acts that were "cruel and inhuman" and that State Parties were obliged to correct, but nevertheless did not constitute "torture" within the meaning of Article 1 of the Convention.
J-E's appeal to the BIA was therefore dismissed and the deportation order remained in effect.
However, the U.S. has declared that the Convention is not self-executing and therefore the Convention's definition does not directly apply in U.S. law. The U.S. has implemented the Convention definition through its Code of Federal Regulations.Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
As noted, the U.S. opted to interpret the vague language of "substantial grounds" in article 3(1) as synonymous with the preponderance of evidence standard found in the common law; the "preponderance" standard has been subject of ample decided cases in the US, creating plenty of judicial precedent.1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.