OpenTheGovernment.org’s Shadow Report to the Committee Against Torture

On November 12 and 13, the United Nations Committee Against Torture will hold a review in Geneva to examine the United States’ record of compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. OpenTheGovernment.org has filed a civil society “shadow report” with the Committee Against Torture.

OpenTheGovernment.org’s report describes how the censorship regime in place at Guantanamo prevents detainees from conveying descriptions of their own torture to the outside world, prevents adequate investigation into torture allegations, and raises the risk of torture-derived evidence being introduced in military commissions. It recommends the declassification of the full, 6700-page Senate Intelligence Committee report on the CIA program, an end to the classification of the CIA black site program as an above-top-secret “special access program,” and reforms to the classification system to prevent abuse of the secrecy power to conceal criminal activity. The report asks:

If other countries adopted the United States’ view that evidence of torture by the security services was a state secret, and that victims’ descriptions of their own treatment were classified, how could the prohibition on torture ever be enforced?

The report explains how the classification of CIA’s rendition and “black site” programs leads to multiple, ongoing violations of the Torture Convention. These include violations of:

  • Article 12, which requires states to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
  • Article 13 of the Convention, which requires that countries “ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities.”

OpenTheGovernment.org’s report refutes in detail the claims the United States has already made to the Committee Against Torture, i.e., that it does adequately investigate allegations of torture under Article 12, and that Guantanamo detainees can complain to the military and the Red Cross under Article 13.

But the US may also be about to argue that these Articles do not apply to acts of torture that occurred in U.S.-run prisons overseas. Articles 12 and 13 apply to allegations of torture “in any territory under [a state’s] jurisdiction.” (Articles 2, 5, 11 and 16 of the treaty contain the same phrase). According to New York Times reporter Charlie Savage, the State Department accepts that military and CIA prisons overseas are under the United States’ jurisdiction for purposes of the Torture Convention. But, Savage indicates,

military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts.

Accepting that argument would be a reversal of President Obama’s position as a Senator, and an implausible reading of a treaty meant to eradicate torture wherever it occurs. But it would be only the latest in a long line of examples where, faced with a conflict between the intelligence services and the State Department, the United States’ legal obligations, or the President’s own past positions, the White House nonetheless decides: “the CIA gets what it wants.”

(For other analyses of and reactions to the New York Times article on the Convention Against Torture’s application overseas, see David Luban, Beth Van Schaak, Andrew Sullivan, and Marcy Wheeler. Wheeler has also written an excellent summary of OpenTheGovernment.org’s shadow report).

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