concerns that diplomatic assurances are being used in some cases as justification to transfer persons suspected of having information regarding terrorism-related activities to countries where torture is routinely used, sometimes specifically to extract such information. A spate of U.S. government revelations in February and March 2005 regarding the U.S. renditions program indicates that those concerns are not unwarranted. High-level U.S. administration officials have defended the practice of transferring detainees by rendition in the “war on terrorism” to other countries for interrogation, but have also insisted that in all such cases they seek assurances that the detainees will not be tortured. On February 16, 2005, Director of Central Intelligence Porter J. Goss testified before Congress and defended the CIA's participation in such transfers.108 Goss also admitted that the United States had a limited capacity to enforce diplomatic assurances against torture: We have a responsibility of trying to ensure that they are properly Newly-appointed U.S. Attorney General Alberto Gonzales also said in a March 2005 interview that the U.S. State Department and CIA secure assurances that detainees subject to transfer will be treated humanely upon return, but that once a detainee is in custody in another country, "We can't fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us... If you're asking me, 'Does a country always comply?' I don't have an answer to that."110 These striking admissions by U.S. government officials acknowledge that once a detainee is transferred there is no way to enforce diplomatic assurances or fully guarantee a retumee's safety. In response to Goss's claim that assurances are "checked and doublechecked" the New York Times concluded: 108 Testimony of the Director of Central Intelligence Porter J. Goss before the Senate Select Committee on Intelligence, "Global Intelligence Challenges 2005: Meeting Long-Term Challenges with a Long-Term Strategy," February 16, 2005 [online] http://www.cia.gov/cia/public_affairs/press_release/2005/pr02172005.html (retrieved March 9, 2005) 109 Tracy Wilkinson and Bob Drogin, "Missing Imam's Trail Said to Lead from Italy to CIA; Prosecutors in Milan are Investigating Whether an Egyptian-born Suspected Militant was Spirited Away by the U.S. Using a Disputed Tactic," Los Angeles Times, A-1, March 3, 2005. See also, Douglas Jehl and David Johnston, "Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails," New York Times, March 6, 2005. 110 Mark Sherman, "Gonzales: No Guarantee Captives aren't Tortured," Associated Press, March 8, 2005. Those assurances are worthless, and the Bush administration surely The Bush administration, however, has continued to defend the practice of relying on assurances against torture, even from the government of Uzbekistan, a country in which torture is systematic. ̈12 At a press conference on March 16, 2005, President George W. Bush stated that one way to protect the American people and their friends from attack post-September 11 was “to arrest people and send them back to their country of origin with the promise that they won't be tortured.” 113 In response to a reporter's follow-up question, “.......what is it that Uzbekistan can do in interrogating an individual that the United States can't?" the President simply responded, “We seek assurances that nobody will be tortured when we render a person back to their home country." "114 No Effective Opportunity to Challenge Reliability of Assurances The most glaring deficiency in U.S. law and policy lies precisely in the absence of express provision for procedural guarantees for the person subject to transfer, including any opportunity to challenge the credibility or reliability of diplomatic assurances before an independent judicial body. This deficiency applies with equal force to immigration cases, which are governed by the procedures set forth in federal regulations; to renditions outside of any legal framework, which lack even the basic and flawed process set forth in the immigration regulations; and to returns from any place of detention within U.S. jurisdiction or effective control, including Guantánamo Bay, 111 Editorial, "Torture by Proxy," New York Times, March 8, 2005. See also Editorial, "Torture by Proxy," Los Angeles Times, March 11, 2005, p. B-12: "The CIA says with a straight face that it gets those assurances before delivering suspects to jailers in Egypt, Syria, Saudi Arabia, Jordan and Pakistan-countries that have such abysmal human rights records that promises of decent treatment are a joke." See also Dana Priest, "CIA's Assurances on Transferred Suspects Doubted; Prisoners Say Countries Break No-Torture Pledges," Washington Post, March 17, 2005, p. A1. 112 The 2004 U.S. Department of State Country Reports on Human Practices documents the following types of torture at the hands of the Uzbek authorities suffocation, electric shock, rape and sexual abuse, beatings. The country report also referenced a February 2003 report by the U.N. Special Rapporteur on Torture, which concluded that torture or similar ill-treatment was systematic. See Report of the Special Rapporteur on Torture, Mission to Uzbekistan, E/CN.4/2003/68/add.2, February 3, 2003 [online] http://daccessdds.un.org/doc/UNDOC/GEN/G03/107/66/PDF/G0310766.pdf?Open Element (retrieved March 19, 2005). 113 Press Conference by the President, March 16, 2005 [online] http://www.whitehouse.gov/news/releases/2005/03/20050316-2.html (retrieved March 19, 2005). It is striking that the executive branch and intelligence services have sole discretion for seeking, securing, and determining the reliability and sufficiency of diplomatic assurances. The verification and reliability assessment required by the immigration regulations lies with the Secretary of State and Attorney General and is completely discretionary. In rendition cases, the State Department and CIA apparently are tasked with securing and evaluating assurances.115 In returns from Guantánamo Bay, the Department of Defense, in consultation with the State Department and other government agencies, assumes that responsibility. Thus, although the reliability of assurances to protect against torture is central to determining whether a transfer is lawful, there is no provision for judicial review or other independent evaluation of assurances in any transfer effected by the U.S. government based on them. The executive branch essentially decides for itself whether its transfer of a person to the custody of another government is legal.116 Access to due process is a cornerstone of both U.S. law and international human rights standards. As the Association of the Bar of the City of New York has correctly pointed Out: [T]he unfettered discretion the Executive Branch exercises in seeking 115 Mark Sherman, "Gonzales: U.S. Won't Send Detainees to Torturers; Attorney General Alberto Gonzales Said the United States does not Send Detainees to Nations Allowing Torture, but Once They are Transferred, Can't Ensure Good Treatment," Miami Herald, March 8, 2005, p. 7: "Gonzales said the State Department and the CIA obtain assurances that people will be humanely treated. In the case of countries with a history of abusing prisoners, the United States would, I would think in most cases, look for additional assurances that that conduct won't be repeated'." Ibid. 116 The inability to challenge executive decisions regarding transfers to risk of torture based on diplomatic assurances has been played out in other fora as well. In October 2004, a majority of the twenty-five active judges in the Ninth Circuit Court of Appeals (San Francisco) voted to order a re-hearing of the Cornejo-Barreto case before an eleven-judge panel. A three-judge panel ruled previously in the case that federal judges had no authority to review an extradition proceeding for the possibility that an extraditee would be at risk of torture if returned to the country that issued the extradition warrant. That court ruled that authority to make such determinations regarding risk of torture lies exclusively with the secretary of state. Although the regulations that govern the implementation of the Convention against Torture in extradition cases contain no express provision for the use of diplomatic assurances against torture, such guarantees were a feature of this case and would presumably have been one of the aspects of the extradition proceeding that would have been reviewable for reliability and sufficiency if the appeals court had had an opportunity to rule that extradition proceedings can be challenged in federal court for compliance with the US's Convention against Torture obligations. See CornejoBarreto v. Siefert, 386 F.3d 938 (9th Cir., en banc, 2004). The case became moot when the foreign government seeking Comejo-Barreto's extradition withdrew its request. See Cornejo Barreto v. Siefert, 389 F3d 1307 (9 Cir. 2004). obligation to provide detainees in its custody an effective opportunity to 17 Moreover, neither U.S. policy nor the immigration law requires the executive to reject as inherently unreliable assurances from governments in countries where torture is a serious human rights problem or where specific groups are routinely targeted for torture and ill-treatment and a person subject to return based on assurances is a member of such group. Under current U.S. law and policy, the government could transfer or remove a person at high risk of torture or ill-treatment based on the simplest and vaguest of promises from governments that routinely violate the law. Legislative Initiatives The Abu Ghraib torture scandal, the Arar case, “renditions” to torture, and revelations of torture and ill-treatment by U.S. forces in Afghanistan and at Guantánamo Bay have given rise to a public debate about the U.S.'s obligations under international law and the imperative to halt and prevent torture and ill treatment at home and abroad. In this context, some lawmakers have proposed new legislation to address the prohibition against torture, including the absolute ban on returning a person to a place where he or she would be at risk of torture or ill-treatment. Several key proposals have addressed the ban on transfers to risk of torture and the issue of whether or not diplomatic assurances are an effective safeguard against torture and ill-treatment. 9/11 Recommendations Implementation Act In September 2004, the Republican party leadership in the U.S. House of Representatives introduced a bill titled “9/11 Recommendations Implementation Act (H.R. 10)," intended to implement the recommendations of the U.S. 9/11 Commission. The bill would have authorized the U.S. government to deport non-citizens who it labeled as national security threats or criminal aliens to countries where they would be at grave risk of torture, in clear violation of the U.S.'s obligations under the Convention against Torture. Human rights groups, including Human Rights Watch, strongly opposed the bill, stating that it would violate the U.S.'s Convention against Torture 117 Association of the Bar of the City of New York and Center for Human Rights and Global Justice at NYU School of Law, Torture by Proxy: International and Domestic Law Applicable to "Extraordinary Renditions," October 2004, p. 89 [online] http://www.abcny.org/pdf/report/Torture%20by%20Proxy%20%20Final%20(PDF).pdf (retrieved March 9, 2005) *This obligation [to afford procedural guarantees] is grounded in Convention against Torture Article 3 (prohibiting torture and CID) and Article 2 (requiring state parties to implement judicial and administrative measures to prevent torture); and ICCPR Article 7 (prohibiting torture and CID) and Article 2(1) (interpreted by the Human Rights Committee as requiring state parties to respect and to ensure' ICCPR protections through prevention and provision of judicial or administrative review)." Ibid obligations and U.S. domestic law and have "immediate and damaging consequences."118 In the face of strong public criticism, the House Republican leadership amended this section of the bill and deleted the exemption from the Convention against Torture protection against refoulement to torture. Instead, they included a provision that retained the ban on removals that would violate the Convention against Torture, but added draconian detention provisions for certain classes of non-citizens who are granted this protection. These detention provisions lacked adequate standards and failed to provide for judicial review to safeguard against abuse.119 The provisions were not included in the legislation that was eventually passed in January 2005.120 Torture Outsourcing Prevention Act: Markey Bill Representative Edward J. Markey, a member of the U.S. House of Representatives from the Democratic Party, has been a leading opponent of the practice of renditions in the U.S. Congress and has also argued that diplomatic assurances from abusive regimes are inherently unreliable. In February 2005, Markey introduced a bill entitled the “Torture Outsourcing Prevention Act (II.R. 952)”, 121 The bill reaffirms the absolute prohibition against torture and refoulement and states that "it is critically important for that all transfers of individuals to other countries occur with full due process of law and in conformity with the obligations of the United States under article 3 of the Convention against Torture.”22 The bill specifically addresses the ineffectiveness of diplomatic assurances against torture: The reliance on diplomatic assurances from a government that it will not such as Egypt, Syria, and Uzbekistan have violated such assurances they 118 Letter to members of the U.S. House of Representatives from Human Rights Watch, Amnesty International, Human Rights First, Physicians for Human Rights and other human rights groups asking members to oppose the offending provisions and have them struck from the bill, September 30, 2004, copy on file with Human Rights Watch. 119 9/11 Recommendations Implementation Act of 2004 (H.R. 10) [online] http://thomas.loc.gov/cgibin/query/D?c108:1: /temp/-c108Qm13YF:: (retrieved April 6, 2005). 120 Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, January 7, 2005 [online] http://thomas.loc.gov/cgi-bin/query/D?c108:4: /temp/~c10880KsSS:: (retrieved March 29, 2005). 121 Press Release, "Markey Introduces Bill to Prevent Outsourcing of Torture," February 17, 2005 [online] http://www.house.gov/markey/issues/iss_human_rights_pr050217.pdf (retrieved February 23, 2005). Torture Outsourcing Prevention Act (H.R. 952), F:\M9\MARKEY_017.XML, Sec. 2(14) [online] http://www.theorator.com/bills 109/hr952.html (retrieved April 6, 2005). 177 |