Privacy SOS

No reckoning with torture as Convention Against Torture marks its 25th year

Illustration from Brockhaus and Efron Encyclopedic Dictionary (1890—1907)

The United States has long been known for its reluctance to ratify international human rights treaties.  One of the few such treaties it has ratified is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which came into force 25 years ago, on June 26, 1987. 

It’s hard to imagine CAT being ratified by today’s Congress, where the prevailing bipartisan consensus undergirds the violations of most of its provisions. But back in 1988, it was President Ronald Reagan, no less, who added the United States as a signatory, and asked the Senate to consent to its ratification — which it did, six years later. 

Yesterday, June 26, was the International Day in Support of Victims of Torture. There were a smattering of demonstrations and vigils, films, and Congressional briefings organized by groups like Amnesty International, the National Religious Campaign Against Torture and Physicians for Human Rights.

The ACLU marked the day by launching a searchable ‘Torture Database’ of the more than 100,000 documents it obtained through FOIA litigation relating to the torture, cruel, inhuman and degrading treatment sanctioned by the Bush Administration. 

The occasion was ignored by the US mainstream media. No interest was taken in the announcement by Khalid Sheikh Mohammad’s attorneys that they had filed a “Letter of Allegation” under CAT with the UN Special Rapporteur on Torture, Cruel, Inhuman and Degrading Treatment. 

With this letter, they asked the Special Rapporteur to “initiate a full, fair, and impartial inquiry” into the conduct of the United States as a State Party to the Convention in subjecting their client to waterboarding on 183 occasions.

So how likely is it that such an investigation will take place? 

If the US were taking its international treaty obligations (and its own domestic anti-torture statute) seriously, such an investigation would have been underway long ago.  

The Convention binds its signatories to prevent acts of torture “in any territory under its jurisdiction” and asserts that “no exceptional circumstances whatsoever…may be invoked as a justification of torture” (Article 2). 

It also requires “each state party” to “ensure that its competent authorities proceed to a prompt and impartial investigation whenever there is reasonable grounds to believe that an act of torture has been committed in any territory under its jurisdiction” (Article 12) and states that victims of torture have the right to redress and “fair and adequate compensation.”

For those who would quibble over whether a particular form of inflicting pain can be labeled torture, Article 16 requires states to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” (Article 13). 

There were once high hopes that the Obama Administration would not just stop torture from being used in CIA black sites and prisons, but would also hold accountable those responsible. 

Few took note at the time of the wiggle room in President Obama’s executive orders of January 22, 2009, which revoked Bush Administration executive order 13440 and its legal memoranda concerning interrogations, and required all interrogations of detainees to follow the Army Field Manual guidelines. The CIA was also required to close its secret detention facilities. 

However, there were certain troubling loopholes: a Special Task Force was created to determine whether there should be additional or different guidelines for CIA interrogation practices. Suspects were permitted to be held by the CIA on “a short-term, transitory basis.” And the practice of rendition was retained, with the understanding that suspects be sent only to countries which had jurisdiction over them and where torture would not be used against them. 

In the words of an anonymous Obama Administration official, “Obviously you need to preserve some tools – you still have to go after the bad guys.”

After President Obama released the four Bush Administration secret memos justifying torture on April 16, 2009, he showed no further appetite to delve into the matter.  Indeed, on the very same day, he stated that CIA operatives would not be prosecuted for using interrogation techniques outlined in the torture memos, and that “nothing will be gained by spending our time and energy laying blame for the past.” The nation, he said should “look forward, not backwards.”

With a difficult-to-interpret eight-year statute of limitations part of the federal anti-torture statute, accountability was off the table, possibly for good. 

No Bush official has been held responsible for torture. No victims of torture have been given redress in US courts or an apology by the US government. In fact, the Obama Administration is doing its best to ensure that torture victims are denied their day in court.

Guantanamo is not closed and seems likely to warehouse US torture victims for years to come. Bagram – known as “Obama’s Guantanamo” – is being transferred to Afghan control, with the US retaining access to certain detainees and no clarity about what will happen to detainees who are not Afghan citizens. 

No one knows what the CIA is doing and how many terrorism suspects are being subjected to extraordinary rendition. It has been suggested that the Obama Administration finds it easier to kill them than capture and detain them – hence the accelerated death-by-drone program. 

The Obama Administration, like its predecessor, is missing its deadline for engaging with the UN Committee Against Torture that overseas CAT. When the Bush Administration finally submitted its report four years after it was due, it tried – but failed – to convince the Committee that it was in compliance with its treaty obligations. 

Unfortunately, the lengthy list of recommendations with which the Committee responded to the Bush Administration is not legally binding. And neither would be the results of the Article 22 complaint process initiated by Khalid Sheikh Mohammad under Article 22 of CAT. 

Unless the American people demand accountability for torture from their elected leadership, the Convention Against Torture will be just one more plank of a disappearing international human rights framework. 

© 2021 ACLU of Massachusetts.