Niko Kyriakou

NEW YORK, May 25 2005 (IPS) — Civil rights groups are accusing the U.S. government of failing to admit the extent to which abuse of non-citizens in U.S. custody in Afghanistan, Iraq, and its base at Guantanamo Bay, Cuba, violates the international treaty against torture.

At issue is a report submitted by the U.S. State Department, or foreign ministry, to the U.N. Committee Against Torture, an international panel that reviews whether signatories are following their treaty obligations under the Convention Against Torture. The committee is expected to review the report, submitted this month, when it next meets in November.

The torture convention, which the United States and 139 other countries have ratified, prohibits ”cruel, inhuman, or degrading treatment or punishment.”

The U.S. report reaffirms Washington’s opposition to torture and says ”the United States is fully aware of allegations that U.S. military or intelligence personnel have subjected detainees in various locations to torture.”

But rights advocates including Human Rights Watch as well as smaller U.S. groups said the document fails to mention cases of ”ghost detainees,” or prisoners held by U.S. officials incommunicado and in secret. Further, it does not acknowledge that degrading treatment of prisoners held abroad and the ”rendition”, or export, of suspected terrorists to countries with reputations for torture, are prohibited by the treaty, according to the activists.

Thus, said Human Rights Watch U.S. programme director Jamie Fellner, Washington’s position remains vague on whether U.S. actions are governed by the torture convention or by the U.S. Constitution, and on whether the constitution’s protections apply to non-citizens held abroad.

Bob Harris, a legal expert for the State Department, declined to comment on the complaints or to clarify the U.S. position other than to say it is described in the report.

Activists said they had sought Washington’s clarification on these points, to no avail. In turn, they have been left to theorise about possible legal explanations as to why U.S. officials have been vague about their position and in some instances have argued that abuses abroad are not violations.

According to the group Human Rights First, when the United States ratified the torture convention in 1994, it expressed a reservation, as the U.N. permits, to Article 16 of the treaty. This section of the pact calls on each member state to prevent, in any territory under its control, cruel, inhuman or degrading treatment or punishment by any person acting ”in official capacity.”

Through this reservation, the U.S. has the right to ignore any part of Article 16 that is not covered by the U.S. Constitution.

In exercising the option, U.S. officials were ”hedging their bets,” building in a safety valve to release pressure should Washington be accused of violating the torture convention, said Human Rights First spokesperson Preeti Patel.

U.S. Attorney General Alberto Gonzales has used that valve, she said.

”Gonzales, in his confirmation hearing, said that Article 16 doesn’t apply to non-citizens being held abroad,” Patel said.

This is ”a new interpretation of the reservation which was never used before,” Fellner, at Human Rights Watch, told IPS.

Fellner said Gonzales’ interpretation runs counter to the original intent of the U.S. reservation.

”The reason for the reservation,” she said, was that, ”the U.S. didn’t want conduct that was permitted under the constitution to become impermissible under the international treaty.”

Fellner challenged Gonzales’s interpretation, saying that the torture convention applies to conduct regardless of location.

However, Washington appears to insist that the U.S. Constitution applies, and not the convention, legal experts said. Yet here, too, ambiguity abounds.

”The Supreme Court has never definitively decided what parts of the constitution apply to non-citizens abroad,” said Jenny Martinez, a professor at the Stanford Law School in California.

The constitution’s 5th, 8th and 14th amendments prohibit ”cruel and unusual” treatment of prisoners and illegal detentions, and protect their right to due process, but they do not explicitly state whether they apply overseas.

Then again, they do not say that their protections apply only to U.S. citizens and this should be interpreted as meaning they apply to everyone, said Ann Ginger, executive director of the Meiklejohn Civil Liberties Institute, a California-based advocacy group.

Gonzales’s interpretation of the reservation, Ginger said, boils down to this: ”that if the U.S. Supreme Court has not said that a certain action violates the U.S. Constitution, even if it violates the torture convention, then they’re not going to report on it and it doesn’t apply.”

President George W. Bush, in an International Day in Support of Victims of Torture speech last June, said that ”torture is wrong no matter where it occurs and the United States will continue to lead the fight to eliminate it everywhere.”