Submitted to the United Nations Human Rights Committee
In Response to the 28 November 2005 Report of the United States of America
THE TORTURE ABOLITION AND SURVIVOR SUPPORT COALITION INTERNATIONAL
Sister Dianna Ortiz, Executive Director, TASSC International
Jennifer Harbury, Attorney At Law, TASSC International
June 15, 2006
Torture Abolition and Survivor Support Coalition, International
4121 Harewood Rd. NE, Suite B, Washington D.C. 20017
Tele: (202) 529-2991
Website: www.tassc.org, E-mail email@example.com
TABLE OF CONTENTS
I. Executive Summary 2
2. Introduction 3
3. Torture : Specific Techniques 4
4. Renditions and Refoulement 14
5. Failure of the Legal System 16
1. The Torture Abolition and Survivor Support Coalition International, TASSC, is a non-profit organization based in Washington D.C., and was founded by and for survivors of torture from around the world. TASSC is dedicated to the abolition of torture by any nation, in any region.
2. After reviewing the November 28, 2005 Report of the United States regarding its compliance with the International Covenant on Civil and Political Rights, (ICCPR), TASSC makes a number of observations, specifically with regards to the treatment of the detainees in the “war against terror”. The U.S. report is deficient in several respects. First, the international definition of torture has been improperly altered by the U.S. administration. As a result, many of the current interrogation methods have been unilaterally deemed “less than torture” and hence omitted outright from the report. TASSC submits that many of these practices clearly constitute torture, and proffers first hand survivor accounts to clarify this issue. Second, the U.S. report characterizes specific incidents of torture as the individual actions of a “few bad apples”, as opposed to government policy. Again, TASSC challenges this assertion, and presents evidence that the United States has been involved in identical torture practices, either directly or by proxy, for decades.
3. In this report, TASSC sets forth a number of case histories of survivors of torture from Latin America and other regions. These personal accounts shed crucial light on the devastating physical and psychological effects of interrogation methods such as “water-boarding”, dog attacks, short shackling, “stress and duress” positions, abduction of
relatives, combined sensory assaults, and the “water pit”. Such methods fall well within the international definition of torture.
4. The TASSC report also documents the U.S. practice, either directly or “by proxy”, of identical torture techniques in other nations in the past. This strongly indicates long-term government policy and command responsibility for current violations. TASSC’s position is further corroborated by recently declassified U.S. documents.
5. “Extraordinary renditions” by the United States are also discussed in light of this history. TASSC submits that torture is in fact the intended goal of such renditions, which constitute “torture by proxy”.
6. In this report, TASSC also documents the U.S. practice of ghost prisoners in the current “war against terror”, and traces U.S. involvement in the same actions throughout Latin America and Vietnam. This is a form of psychological torture for both the detainee and his or her family members.
7. Contrary to various U.S. declarations, there exist no adequate legal remedies for the detainees at this time. De facto immunity has long existed for persons living outside the United States. This reality has been worsened by executive decisions and recent legislation. These make clear the government’s intent to immunize, not eradicate, torture.
The Torture Abolition and Survivor Support Coalition International, TASSC, is a non-profit organization based in Washington D.C.. It was established in 1998 by Sister Dianna Ortiz, an Ursuline nun who suffered severe torture in Guatemala. All staff members are survivors of mental or physical torture, including Orlando Tizon from the Philippines, and Jennifer Harbury, whose husband was tortured to death in Guatemala. Our membership consists of well over 200 survivors from around the world and, sadly, continues to grow. As our name suggests, our organization is dedicated to the abolition of torture by any nation, in any corner of the globe.
We have been monitoring the practice of torture and cruel and degrading treatment by United States officers and agents abroad for many years now. We have also carefully reviewed the November 28, 2005 U.S. Report presented to the Human Rights Committee. Our comments here are limited to the current treatment of the detainees held in the “war against terror.” The U.S. position with regards to the detainees are set forth in the Annex of its report. This annex includes the U.S. claim that its obligations under the ICCPR apply only within its own territories (Paragraphs129-130).
Based on the information we have long compiled from survivors themselves, witnesses, declassified government documents, and other credible sources, we find a number of statements in the 2005 report to be disturbingly evasive and incomplete. We note, for example, that throughout the U.S. report, cases of clear torture, arbitrary arrests and other violations are either proffered as examples of individual misconduct instead of official policy, or are omitted outright. Such omissions are the result of the U.S. government’s unilateral determination that certain standard interrogation techniques do not constitute torture, or that the abductions discussed below are justified and lawful. We present evidence of these official techniques and abduction practices and submit them to this Committee for the proper analysis and decision.
Lastly, we note that despite U.S. assurances, there are no adequate legal remedies or mechanisms for official accountability in the United States. To the contrary, recent official actions indicate the intent to immunize rather than eradicate torture and unlawful abductions.
The following issues will be evaluated here:
1. Specific Techniques and Their Physical and/or Psychological Impact
2. Renditions and Refoulement
3. Absence of Adequate Legal Remedies and Accountability It is our hope that our comments, clarifications, and additional documentation, are of assistance to the Human Rights Committee in evaluating the Nov. 2005 U.S. report, and in continuing the crucial international efforts. Should further information or materials be of use to this Committee, please do not hesitate to contact us.
II. TORTURE: A. Specific U.S. Techniques and Their Physical and/or Psychological Impact. When the photographs of U.S. torture practices in Abu Ghraib prison were broadcast around the world in 2004, numerous additional reports by investigators, soldiers and detainees were made public.1 Although most U.S. citizens reacted with shock and outrage, many survivors of torture from Latin America and other nations were left with a grim sense of déjà vu. They had endured precisely the same techniques, often in the presence of obvious U.S. intelligence agents.
In response to the public uproar over the Abu Ghraib images, high- level U.S. officials declared that 1.) the depicted “abuses” were the actions of individual, undisciplined soldiers, and did not reflect government policy and 2.) other routine interrogation practices, such as water-boarding or attacks on family members, did not amount to torture. The U.S. report reflects these positions. Whether or not current U.S. interrogation techniques constitute torture or other violations of the ICCPR is discussed in this section. The fact that these techniques constitute long- standing policy, not individual error, clarifies the question of command responsibility, and is also addressed throughout this report.
As noted above, many torture survivors have personally experienced the very methods now being used, and can describe the realities in grim detail. The information they provide is crucial to any accurate evaluation of a given technique. The sanitized language used by U.S. officials is highly deceptive and inaccurate. We therefore document the psychological and physical suffering actually inflicted by these techniques. We also note that the methods used have a very long history, belying the claim of the “few bad apples”.
Some of these cases may have occurred before the ICCPR gained full effect in the United States. However, other treaties, as well as binding international customary law, and U.S. domestic law certainly banned the use of torture and arbitrary detentions throughout all relevant time frames. Thus the survivor testimonies also give important information about official U.S. intent, knowledge, long time policy, and de facto impunity.
We note, finally, that the U.S. interpretation of the applicability of the ICCPR in no way alters our conclusions about the nature of these techniques. Clearly the detainees are now under the full, exclusive, and absolute control of the United States, as opposed to any intermediate foreign government. Hence they must be deemed to fall within de facto U.S. territory and jurisdiction.
1. ATTACKS ON AND ABDUCTION OF FAMILY MEMBERS OF DETAINEES Perhaps the cruelest of the psychological tortures utilized today by the U.S. is the abduction and abuse of relatives of the detainees. The family members abducted are not suspected of any crime, and their detention and mistreatment inflicts great anguish on the detainee. Even the threat to harm a complete stranger causes extreme psychological pain and suffering. (The definitions set forth in the Convention Against Torture confirm this reality.) As discussed below, the U.S. is currently violating Articles 7 and 9 in this regard.
There have been several reports of both the abduction and abuse of innocent relatives of the detainees by the U.S. armed forces. When Khalid Sheik Mohammad was captured, his elementary school age children were held “within access” of the U.S. military.2 Similarly, U.S. interrogators “broke” an Iraqi general by forcing him to watch while his frail adolescent son was soaked with icy water and left to shiver uncontrollably in the cold.3 There have been recent reports as well that U.S. personnel have been seizing and imprisoning the wives of suspected insurgents, in order to force them to turn themselves in. In one case a note was left on the door telling the husband to come get his wife.4
Survivors from other regions are in agreement that some of the most damaging psychological torture consisted of forcing them to watch or listen to another person being harmed. Sister Dianna can never forget the moment that her captors wrapped her hand around a machete and stabbed the battered woman at her side.5 Others recall with horror, decades later, the times they watched others die, or heard desperate screams nearby. The very worst, all agree, were the days when a loved one was brought before them and either threatened or abused.
Clearly, such actions constitute an extreme violation the ban on mental torture for both the detainees and their relatives, as set forth in Articles 7 of the ICCPR. The abuse of the relative often constitutes physical torture as well, or at the least, cruel and degrading treatment banned by Art. 10. Moreover, the abduction and detention of family members is a serious violation of Article 9.
2. GHOST PRISONERS The U.S. also admits to holding a number of detainees as “ghost prisoners”. These prisoners are being secretly held by U.S. agents, without access to or communication with attorneys, courts, families or even the International Red Cross. Their situation is thus identical to that of the “disappeared” or “desaparecidos” of the past grim conflicts throughout Latin America.6 Not only do the “ghost prisoners” themselves suffer mental anguish, but their families endure extreme mental suffering as well.
One of the most tragic photographs from Abu Ghraib depicted the bloodied body of a prisoner known only as “Jamadi”. He had died of head injuries inflicted by U.S. intelligence agents who had ordered the soldiers at Abu Ghraib not to register him on the prisoner list or to tell any one of his presence there. After he was found dead, CIA agents placed his corpse on a gurney with an iv in his arm, so that witnesses would think he was being taken away for medical care.7 His death was never recorded in the prison logs.
Because of the clandestine status of these prisoners, it is impossible to ascertain their numbers or even their medical condition. No one knows if they are dead or alive. This practice is nothing short of kidnapping and arbitrary detention, in violation of Article 9. Worse yet, the secret status of these prisoners invites torture, as in the case of Mr. Jamadi. The practice of “disappearances” clearly constitutes psychological torture for both the detainee as well as his or her relatives.
Families of the “disappeared” in Latin America, have long reported extraordinary mental anguish. Left wonder year after year what where their loved ones are, and what they might be yet be suffering, these families are the first to agree that this is psychological torture of the worst kind. As one such relative has said, “I would rather burn at the stake…”. 8 Human rights organizations, including the United Nations, have defined this technique as torture for surviving relatives.9 3. COMBINED OR SEQUENTIAL SENSORY ASSAULTS AND DEPRIVATIONS Declassified U.S. documents and witness accounts have made it abundantly clear that many interrogation techniques involving sensory assaults and/or deprivations have been specifically authorized by high- level U.S. officials. Some of these techniques are clear examples of mental or physical torture under any circumstances. In other instances, U.S. officials claim that by setting time limits on a given technique, such as standing, torture is avoided. However, as discussed below, U.S. interrogators have been combining sensory assaults in a manner that is devastating and clearly illegal. In other cases, one sensory assault or deprivation follows rapidly upon the other, with equally devastating results over time.
Combined Assaults: Short Shackling
Certain FBI agents working in Guanátanamo were horrified when they witnessed the results of short-shackling, a method being utilized by the CIA and other intelligence agents there. The FBI agents wrote a number of memos to their supervisors on the subject, and in the end received orders not to participate. The technique consists of a combination of physical and sensory assaults. The naked detainee is bolted hands and feet to the floor in an uncomfortable position. Temperatures rise and fall, no food or water is provided, no toilet privileges granted, strobe lights flare and loud, irregular sounds and music are blasted at the prisoner. When the FBI agents entered the room the next morning, they found prisoners lying unconscious in a pool of filth. One man had pulled out clumps of his own hair. 10
The United Nations has long since ruled this combination of techniques to constitute torture:11 “These methods include 1.) restraining in very painful positions, 2.) hooding under special conditions, 3.) sounding of loud music for prolonged periods, 4.) sleep deprivation for prolonged periods, 5.) threats, including death threats, 6.) violent shaking and 7.) using cold air to chill; and are in the Committee’s view…torture….This conclusion is particularly evident where such methods of interrogation are used in combination….”
Sequential or Cumulative Assaults and Deprivations Combined sensory assaults and deprivations are not the only way in which lesser methods are being used to torture the detainees. When the prisoner is subjected to one after another of these techniques, for months on end, the impact is indeed devastating.
One grim example is the merciless long- term torture of “Prisoner No. 063”, Mr. Mohammad al-Qatani, in Guantanamo. According to official documents, Mr. Qatani has been terrorized by army dogs, and subjected to extreme solitary confinement, sleep and sensory deprivation, and sexual and religious humiliation. After months of such treatment, his heat beat rate to 35 beats per minute, requiring hospitalization. According to concerned FBI officials, he began to show extreme psychological trauma, talking to non-existent people, hearing voices, and crouching in a corner of his cell covered with a sheet for hours at a time.
Clearly such brutal sequential methods have a cumulative effect that constitutes torture.
4. TRADITIONAL TORTURE TECHNIQUES:
The U.S. government has also been using a number of its standard torture techniques on the detainees today. These are not the individual abuses of poorly disciplined soldiers, but rather, as indicated by the history set forth below, a reflection of long term policy.
In 2003, in the early phase of the “war against terror”, U.S. troops captured Mr. Khalid Sheikh Mohammad, a suspected Al Qaeda leader. In the enthusiastic public announcements that followed, official sources acknowledged that Mr. Mohammad was in the hands of U.S. intelligence officials, and that the interrogation methods being used included “water-boarding”.12 According to CIA spokespersons, this method consists of holding the detainee’s head under water, until he “thinks he is going to drown”. In other versions, it consists of pouring volumes of water directly into the face of the detainee until, once again, he thinks he is going to drown. According to high-level U.S. officials, including Attorney General Alberto Gonzales and former CIA Director Porter Goss, this method falls short of torture. We believe the following accounts by survivors offer clarification.
1. Otoniel De La Roca Mendoza:
Mr. De La Roca Mendoza is a citizen of Guatemala. He was secretly detained and tortured by the U.S. backed Guatemalan military in 1988, during the internal conflict in that country. The “methods” used on him included electrical shocks, beatings, asphyxiations with a rubber hood filled with pesticides, and water-boarding. This last method consisted of military intelligence agents plunging his head first into a large vat of water. He states that as he was held down, the water filled his nose and mouth and went into his head. There was terrible pain. This grew even worse as more water filled his throat and lungs, and he felt that his eardrums would burst from the pressure. He finally lost consciousness. In short, he did not merely “think he was going to drown”. He began to truly drown. When he awakened, the process was repeated. He survived three of these drowning sessions and remembers this treatment with horror. An American agent was aware of the situation but failed to assist or protect him.13
2. Ines Murillo:
Ines Murillo is a citizen of Honduras. She was abducted and secretly detained for 78 days by members of Batallion 316 in Honduras in 1983. During part of this time she was held in the military INDUMIL center. Once finally released, she reported that an American intelligence agent called “Mr. Mike” repeatedly visited this location while she and others were being tortured there. The CIA has admitted that one of their agents often visited this secret prison.14 Ms. Murillo endured “water boarding” during her interrogations, and remembers these sessions with horror. Evidence of such sessions was confirmed by the CIA as well. However, “Mr. Mike” made no effort to rescue Ms. Murillo or report her situation to the courts or her family members. Instead, he continued to visit, advise, and receive information.
There can be no doubt that water-boarding constitutes both physical and psychological torture. It certainly inflicts extreme physical pain. Moreover, it is a slow motion mock execution, and inflicts mental anguish far more severe that a mere threat to kill or to harm. Indeed, as U.S. Senator John McCain has noted, water-boarding is a very “exquisite” form of torture.15
Abu Ghraib: The “Man on the Box”
On of the most searing images in the Abu Ghraib photographs is that of a hooded man standing on a box, arms outstretched and dangling wires. According to U.S. officials, the man was merely told that if he moved his arms, he would receive electrical shocks through the wires. One detainee, in fact, received electrical shocks so strong he fainted.16 The threat was not an empty one, as officials tried to suggest.
Obviously this constitutes both psychological and physical torture. It was not, however, the random idea of the individual soldiers on duty. This technique has been used for decades and was promptly recognized by intelligence officials. "Was that something that [an MP] dreamed up by herself? Think again," says Darius Rejali, an expert on the use of torture by democracies. "That's a standard torture. It's called 'the Vietnam.' But it's not common knowledge. Ordinary American soldiers did this, but someone taught them."17
The Abu Ghraib photographs also depicted U.S. soldiers allowing ferocious dogs to leap at terrified detainees. One prisoner was shown bleeding on the floor, having obviously been bitten. For some time U.S. officials insisted that this was a malicious “prank” invented by the soldiers on duty that night. However, a number of U.S. soldiers and interrogators later came forward and stated that in fact such tactics were authorized and approved by senior officers, and frequently utilized.18The technique, moreover, is not new.
Sister Dianna Ortiz
Sister Dianna Ortiz was a young American nun teaching school children to read and write in Guatemala in 1989. She was abducted and severely tortured by the U.S. backed military. Her captors, like the soldiers in Abu Ghraib, allowed a ferocious dog to attack her and she suffered other barbaric forms of torture as well, including multiple rapes and 111 cigarette burns to her back. Later, an obvious American entered the room speaking poor Spanish with a heavy American accent. He knew where to find her, and had clear authority over her torturers. When he demanded that she be turned over to him, they answered “Yes Boss”, and obeyed. Sister Dianna fears dogs to this day. Her combined tortures left her, like all other survivors, with long-term trauma. As she has said, “One never heals from torture. One merely learns to cope with the aftermath.”19
It is difficult to imagine a more severe form of psychological torture than this. Most certainly it falls well within the international definition.
The Water Pit
The CIA authorized many of the more shocking interrogation techniques that have been reported. As it turns out, a number of these are set forth in a U.S. training course for special operations agents. The objective of the course was to train the agents to withstand such methods should they ever fall captive and be tortured by enemy forces. One of the techniques in the course is called the “water-pit”, another consists of a mock burial. The water pit consists of placing a person in a pit of water so deep that he or she must hang onto overhead bars to keep from drowning.
Authorization was specifically requested for the use of the mock burials in Afghanistan during the “war against terror”. Government officials have not disclosed whether or not permission was granted for this method, or for the water pit. 20 However, Mr. Mamdouh Habib, who was “rendered” by the United States to cooperative Egypt interrogators, certainly endured the “water pit”. He reports that he was held in a room full of water so deep he was forced to stand on tip- toe to keep his head above water.21 The water pit technique has been used before, and always by military interrogators working closely with U.S. intelligence agents. In short, wherever this technique originated, the U.S. has adopted and taught it wherever our intelligence branches have operated.
Efraín Bámaca Velásquez
Efraín Bámaca Velásquez was a Mayan resistance leader in Guatemala. He was captured in 1992 and secretly detained by the Guatemalan intelligence agents for more than two years. During that time he was severely and repeatedly tortured, then extra-judicially executed. As later disclosed by U.S. officials, his torturers were paid CIA informants.22 In the ensuing political uproar, U.S., U.S. officials were forced to de-classify a number of government documents concerning the Bámaca case. The water pit used by Guatemalan agents working closely with the U.S. is described in detail in a Defense Department document describing conditions at the Retalhuleu military base.23
“There were pits dug on the perimeter of the base, now filled with concrete, that were once filled with water and used to hold prisoners. Reportedly there were cages over the pits and the water level was such that the individuals held within them were forced to hold on the bars in order to keep their heads above water and avoid drowning.”
Standing and Other Stress Positions
Many of the detainees have been forced to stand motionless for long periods of time, or have been shackled and left hanging by their hands and feet. 24 The hanging positions speak for themselves, as they inflict severe pain as well as injury to the limbs. The standing position is perhaps more subtle, yet can also be excruciating if maintained for a long period. Although the Secretary of Defense, Donald Rumsfeld, noted in one memo that he himself often stood for eight hours at a time25, he failed to observe a key difference. He may well stand for long periods at work, but he is constantly moving. When a detainee is forced to stand motionless, fluids build up in the feet and the legs, causing great swelling and pain. If left in this position for long enough, this can cause kidney and other complications. U.S. agents are well aware of this.
Herbert Anaya was the director of the Human Rights Commission in El Salvador when he was abducted and secretly detained by the police in 1986. Through family connections, his wife Mirna learned that he was being held at the Policia de Hacienda headquarters, and that two American advisers were working there. She sent a lawyer to see her husband and attempted to arrange his release. When the lawyer asked for Mr. Anaya, the Salvadoran guard at first denied permission. When the lawyer persisted, an American then came to the door. The lawyer repeated his request, and the American told him to wait. When the lawyer finally was allowed to see Mr. Anaya, he was seated behind a desk. He had been forced to stand for a long period with no toilet privileges or sleep. His feet were so swollen it was impossible to force his shoes back onto his feet. 26
Before his 1987 assassination, Mr. Anaya produced a remarkable report on the torture techniques being carried out at Mariona prison. These included affidavits by the survivors, and sketches depicting the techniques they had endured. One sketch shows an obvious “Yankee” administering electrical shocks to a young prisoner. (Affidavit of Jose Ruben Carillo Cubas.) The other images reflect painful “stress” positions identical to those now used by the U.S. government in the “war against terror.” 27
Ms. Murillo was severely tortured in Honduras by members of Batallion 316 working with an admitted CIA advisor named “Mr. Mike”. Her case is discussed more fully above. During one session, her hands and feet were bound together and she was suspended from the ceiling. The pain was severe and caused permanent damage to her shoulders.28 This technique, called the “helicopter”, was also inflicted on Mr. Aboud Saleh in Abu Ghraib. (Under a deluge of combined techniques, he admitted that he was Osama Ben Laden in disguise.29)
Hot Metal Shipping Containers
The prison uprising at Qala –I-Jangi, Afghanistan, (during which CIA agent Mike Spann perished), was followed by heavy combat with the Taliban. Numerous Taliban and Al Qaeda members surrendered to General Dostum, who was working closely with the U.S. forces. The prisoners were packed into metal containers on the back of trucks, and transported without air vents, food or water. The drivers were told not to stop. When the convoy arrived and the containers were opened, scores of prisoners were found dead of asphyxiation and dehydration. According to the Afghan Organization of Human Rights, approximately one thousand prisoners died.30Although U.S. intelligence agents and “special operatives” were collaborating closely on all aspects of the uprising, battle, and transfer, they said that they had no knowledge of the use of containers. Journalists were reminded that this was a traditional Afghan warlord torture technique.31
Later disclosures, however, show that U.S. interrogators were punishing certain detainees in Afghanistan and other locations by holding them in small hot shipping containers. 32 Moreover, the CIA transported John Walker Lindh, the “American Taliban”, in a shipping container33 shortly after the prison uprising. The use of extreme heat is also reported in declassified U.S. files.34
This “baking” technique was used by the U.S. long before the “war on terror”. Col. Anne Wright witnessed prisoners held in sweltering covered boxes by U.S. soldiers in Granada, and quickly ordered a halt to the shocking practice. 35
III. RENDITIONS AND REFOULEMENT
In many cases, the United States has been sending suspected Al Qaeda sympathizers and insurgents to other nations for interrogation, despite the fact that such nations are well known for their systematic use of torture. For example, many detainees have been sent to Egypt or Syria, although U.S. Department of State reports have long noted the pervasive use of torture by both governments.
These prisoner transfers are formally called “extraordinary renditions” but have been dubbed “torture by proxy”, appropriately enough, by concerned citizens and human rights organizations. According to credible sources, U.S. agents seize the suspect, bind and drug him, then transport him to the third nation in special CIA aircraft.36 U.S. intelligence agents then turn him over, together with questions they seek to have answered. Sometimes the U.S. agent remains on the premises to listen, advise or even watch through two-way mirrors. In addition, the CIA keeps a pipeline to the secret police in such countries “well lubricated with large amounts of cash.”37
Clearly such practices constitute the aiding, abetting and conspiracy to commit torture, or “torture by proxy”. This clearly violates ICCPR’s express prohibitions in Article 7. Moreover, in most cases, there is no serious reason to avoid the court hearings required by Articles 9 and 13. The vague and general “war on terror” does not support the derogation of these articles, or the wholesale abductions and transports of “suspects”. In the great majority of these cases a fair hearing was quite feasible. Hence the CIA abductions of persons from the streets of Milan, or from the Swedish airports, are also violations of the ICCPR.
One illustrative case is that of Mr. Maher Arar, a Syrian born Canadian citizen. Mr. Arar had lived in Canada since he was 17 years old, and was working in the computer industry. On September 26, 2002, he was returning from a vacation abroad with his family, and changed planes in JFK airport in New York City. He was seized by U.S. officials, held for days, then abruptly deported to Syria. There he was tortured for nearly a year and held in a tiny, lightless cell he called “the grave”. Because of the beatings he signed a confession, falsely admitting he had trained in Afghanistan, where he had never been. He was released ten months later at the insistence of his wife and the Canadian government.38 Syrian police have stated that they found no evidence that Mr. Arar had participated in any illegal activities.39 Moreover, they had not requested his extradition.
U.S. officials have responded to the Arar case with the same statements set forth in their Report to this Committee. Specifically, they stated that Mr. Arar was deported to Syria only after receiving assurances from Syrian officials that he would not be tortured.40 This would seem rather disingenuous in light of Syria’s record of systematic torture. Moreover, if torture was not the U.S. objective, why was Mr. Arar sent on a costly flight to Syria instead of to his home country of nearby Canada?
There have been countless other cases of extraordinary renditions, including but not limited to the case of Mr. Mamdouh Habib, discussed above. These are too numerous to set forth here, but we note that several of these cases are now the subject of criminal investigations in Europe. Significantly, the United States continues to send its detainees to countries like Syria and Egypt despite the many documented cases of torture that have resulted from such renditions. In short, the “written assurances” are intended to merely deflect responsibility for the requested torture. This “wink and a nod” approach, or pretense, cannot be accepted as a valid defense to so serious a matter as torture.
The “War on Terror” is not the first time that the United States has engaged in “torture by proxy”, or the use of third parties to carry out torture in return for funding, support, and legal impunity. Reports from many survivors of torture provide relevant and important information as to this long time practice.
Throughout the “Dirty Wars” in Latin America, the United States insisted that it was merely providing training (“professionalization”) and funding to military regimes, despite their clear involvement in widespread torture and extra-judicial executions. According to U.S. officials, there was no knowledge of or involvement in death squad activities or other violations. The following survivor accounts, however, suggest that in fact U.S. torture by proxy was quite common.
Efraín Bámaca Velásquez: U.S. officials have confirmed that Mr. Bámaca was tortured and extra-judicially executed by Guatemalan intelligence officials working as paid informants of the CIA. The CIA was notified of his March 12, 1992 capture and secret detention within days. The Agency was also aware that its own “assets” had falsely declared that Mr. Bámaca had been killed in combat, in order to secretly torture him for his information.41 Regular bulletins about his situation were sent to the CIA and disseminated the Department of State, including a 1993 document confirming that Mr. Bámaca was still alive, and that 350 other prisoners were being secretly detained as well. Other documents confirmed that all prisoners are routinely tortured ands killed. Despite the numerous efforts of Mr. Bámaca’s wife, (U.S. citizen Jennifer Harbury), and concerned members of the U.S. Congress, the truth was withheld until March 1995. By then Mr. Bámaca and the others were dead.42
Witness accounts and declassified documents show that during this three-year silence, Mr. Bámaca was battered and drugged repeatedly, injected with a toxic substance that caused his body to swell until one arm and leg apparently hemorrhaged, held in a full body cast to prevent his escape, then either thrown from a helicopter or dismembered. One of his torturers, Col. Julio Roberto Alpirez, also a paid CIA asset, reportedly received $44,000 from the CIA shortly after he presided over a particularly brutal session.43 Had the truth been told, these lives could have been saved.
2. “Operation Phoenix” was a U.S. intelligence operation in Vietnam. Certain persons believed to be sympathizers or members of the Viet Cong were abducted by a team lead by U.S. agents. The prisoners were then turned over to South Vietnamese team members for torture, “interrogation”, and execution. All information obtained through the use of torture was turned over to the U.S.. We note that a similar death squad, called the Scorpion, has been organized by the United States in Iraq. General Mowhush was tortured and killed by this unit in the presence of its U.S. leader.44
3. According to Florencio Caballero, a former member of Batallion 316 in Honduras, CIA agents were present during a meeting in which the execution of U.S.- born Father James Carney was planned and authorized. They were also present on the base where he was held and tortured, before being thrown from a helicopter. The U.S. was working very closely with Batallion 316 and other units in the Honduran military, in an effort to overthrow the Sandinista government in neighboring Nicaragua. Despite the notorious abuses by Batallion 316, U.S. intelligence agents continued funding, training, and full collaboration.
4. According to Mr. César Vielman Joya Martínez, an admitted member of the Salvadoran death squads, stated that he shared an office with two American advisors, who had full access to all intelligence. Secret prisoners were held and tortured nearby and the situation was obvious. Nevertheless, the U.S. advisors continued funding, instructing Mr. Joya Martínez and the others not to tell them the “details”.45 There have been more than 20 similar cases reported of direct participation in torture by U.S. agents throughout the Dirty Wars in Latin America. Clearly, such a situation was not uncommon. What was rare was the survival of the prisoner.46 It would seem that U.S. officials believe that so long as they did not use their own hands in acts of torture, that somehow they are innocent of any crimes. However, if a man seeking insurance money hires an assassin to shoot his wife, he is nevertheless guilty of murder. This is a basic legal principle, within the U.S. as well as abroad.
IV. FAILURE OF THE LEGAL SYSTEM
After the United States ratified the Convention Against Torture, Congress passed the appropriate criminal statute banning acts of torture by U.S. officials or agents abroad (18 U.S.C. 2340 et seq.). Torture within the United States has been forbidden by the constitution since the days of the Founding Fathers. As stated by Patrick Henry himself, should these barbaric practices be permitted here, then “we are lost and undone”. 47 The new criminal statute adopted the definitions of psychological and physical torture set forth in the Convention. However, it is near impossible today for any detainee to seek redress in a U.S. court for torture. This situation aids and exacerbates the current U.S. violations of the ICCPR discussed above.
Sadly, this new statute has been “interpreted” into non-existence throughout the war against terror. As the notorious Justice Department legal memoranda reflect, Administration attorneys added new and stringent requirements to the statute’s definitions in order to prevent prosecutions. Of course, the executive branch can neither legislate nor adjudicate, yet this new interpretation became de facto law. It is the duty of the Attorney General to seek or authorize indictments for criminal actions. Mr. Alberto Gonzales however, being the author of one of the memoranda, has of course failed to take any such action.
Court Martial proceedings do, of course, exist for military personnel who abuse the detainees. Hence the young soldiers in the Abu Ghraib photographs have been tried and punished. The higher officials who ordered, devised, and authorized the torture techniques, however, remain untouched. Moreover, the Code of Military Justice does not apply to civilians, leaving officials like Mr. Rumsfeld, or a CIA Director, free from risk in most cases.
Normally, when the criminal laws somehow prove ineffective, the injured party may always resort to civil suits and seek redress or protection in the form of injunctive relief from the courts of law. Inmates in U.S. prisons certainly have the right to seek redress from the courts, and the right to access to the courts has long been deemed fundamental.
The U.S., however, has long set up barricades against such civil relief and protections, under the doctrine of official immunity. The case of Mr. Bámaca, for example, resulted in a unanimous and lengthy ruling by the Inter-American Court of the Organization of American States against the Guatemalan government in 2000. Because the U.S. has not accepted the jurisdiction of that court or any other international tribunal, Ms. Harbury filed a civil suit against named U.S. officials in 1996. The case remains pending a final decision on the question of official immunity some ten years later. Most of the other cases out of Latin America against U.S. officials have long since been dismissed on this or similar grounds. The detainees are now facing the same legal hurdles, and Mr. Maher Arar’s case, for example, was just dismissed.
There is, of course, the Federal Tort Claims Act, which waives immunity for government torts. There are however, specific exceptions. Ironically, while the recent Supreme Court ruling in Sosa v. Alvarez-Machain 48 makes it possible for a survivor of torture to sue their foreign abusers in the U.S. courts, it also states that the Federal Torts Claims Act bars claims against U.S. officials acting abroad. Under the current government interpretation of the Alien Tort Claims Act, a survivor thus may sue the Salvadoran officer who tortured him or her, but not the CIA agent who was supervising the torture session. The Bámaca case is now pending a court decision on the government’s motion to dismiss on this very issue.
To make matters worse, the recent McCain and Graham-Levin legislation has given de facto immunity to U.S. officials who carry out torture. Originally intended to supplement 18 U.S.C. 2340 et seq. by banning acts of cruel and degrading punishment, the McCain bill was subjected to last minute changes at the House-Senate conference committee. Now the intellectual authors of the current torture practices may defend against criminal charges by asserting that they were relying on the advice of counsel, such as Mr. Alberto Gonzales. Meanwhile the Graham-Levin bill stripped the U.S. courts of jurisdiction to hear habeas corpus claims by the Guantánamo detainees, or any other complaint, including torture cases, brought by them.
Lastly, the U.S. government had often claimed that persons harmed by U.S. agents abroad may seek restitution under our domestic laws. However, the statutes cited limit restitution to friendly parties. Most of the Abu Ghraib and other detainees have been sent home to their shattered lives with virtually nothing. The most telling example is that of the fifteen year old, “N”, who was detained and sexually abused by U.S. agents in Iraq. Humiliated and traumatized, he was eventually cleared. Upon his release, the Americans gave him fifty dollars.49
Attorney at Law
1 Hundreds of photographs depicting far worse treatment remain secret, although certain members of Congress were afforded a viewing. They emerged from the room pale and shocked. “The Roots of Torture”, by Barry, Hirsh and Isikoff, Newsweek Magazine, May 24, 2004. See http://www.msnbc.msn.com/id/4989422/
2 “How do U.S. Interrogators Make a Captured Terrorist Talk?”, by Jess Bravin and Gary Fields, Wall Street Journal, March 4, 2003.
3 “Abu Ghraib: Breaking a General”, by Michael Hirsh, MSNBC Newsweek, Sept. 6, 2004. Confirmed in DOD 863-864 Sworn statement of personnel, A/302nd MI Bn; Annex to Fay/Jones/Kern Report 5/13/2004 Interrogator describes incident where 17 year old was made wet, had mud put on his face and was driven around in back of Humvee. He was placed where father ("General") could see him shivering, and then interrogators "broke" the General.” See http://www.aclu.org/intlhumanrights/gen/13794res20050429.html
4 “How U.S. used Iraqi wives for ‘leverage’: Suspected insurgents' spouses jailed to force husbands to surrender”
, Associated Press, Jan. 27, 2006 See http://www.msnbc.msn.com/id/11061831
5 “The Blindfold’s Eyes”, by Sister Dianna Ortiz with Patricia Davis, (Orbis Books, 2002).
6 It is believed that well over 100 such ghost prisoners are being held now. “Army, CIA Agreed on Ghost Prisoners”, by Josh White, Washington Post, March 11, 2005.
7 “Four Navy Commandos are Charged in Abuse”, Eric Schmitt, New York Times, Sept. 4, 2004, and “Photos of Dead May Indicate graver Abuses”, by James Risen, May 7, 2004.
8 1996 statement by Jennifer Harbury, widow of “disappeared” Efraín Bámaca Velásquez.
9 See generally, Amnesty International Report on Guatemala, Nov. 30, 2000, citing Sir Nigel Rodley, “The Treatment of Prisoners in International Law”, 2nd Edition, Oxford University Press, 1999, pg. 261.
10 “Further Detainee Abuse Alleged”, by Carol Leonnig, Washington Post, Dec. 26, 2004; “Broad Use of Harsh Tactics is Described at Cuba Base”, Neil Lewis, New York Times, Oct. 17, 2004.
11 U.N. Committee Against Torture, CAT/C/SR.297/ADD.1 Conclusions, par. 6-4.
12 “Harsh Methods Cited in Top Qaeda Interrogations”, by James Risen, New York Times, May 13, 2004.
13 Interview with and note by Mr. De La Roca Mendoza.
14 “Unearthed, Fatal Secrets”, by Gary Cohn and Ginger Thompson, Baltimore Sun Special Report, June 11-18. 1995. See http://www.baltimoresun.com/news/local/bal-negroponte1a,0,3704648.story
15 “History of an Interrogation Technique: Water Boarding”, Brian Ross, ABC News, Nov. 29, 2005. Seehttp://abcnews.go.com/WNT/Investigation/story?id=1356870
16 The Man in the Hood”, by Donovan Webster, Vanity Fair, Feb. 2005, http://www.vanityfair.com/commentary/content/printables/050124roco01?print=true
17 The Roots of Torture”,by Barry, Hirsh and Isikoff, Newsweek, May 24, 2004, http://www.msnbc.msn.com/id/4989422/
18 “Dogs and Other Harsh Tactics Linked to Military Intelligence”, by Douglas Jehl and Eric Schmitt, New York Times, May 22, 2004. See http://www.nytimes.com/2004/05/22/politics/22ABUS.html?ex=1400558400&en=dd60a221dcd039a6&ei=5007&partner=USERLAND See also, http://www.aclu.org/intlhumanrights/gen/13794res20050429.html and editorial of U.S interrogator Tony Lagouranis, New York Times, Feb. 28, 2006, at http://www.nytimes.com/2006/02/28/opinion/28lagouranis.html?ex=1298782800&en=4783b895701b8e75&ei=5088&partner=rssnyt&emc=rss
19 “What Makes the Effects of Torture Linger? ” Steve Friess, June 28, 2004. See http://www.stevefriess.com/archive/usatoday/scienceoftorture.htm
20 “Harsh CIA Methods Cited in Top Qaeda Interrogations”, by James Risen, New York Times, May 13, 2004; and “A Tortured Debate” by Hirsh, Barry and Klaidman, Newsweek, June 21, 2004.
21 “Outsourcing Torture” by Jane Mayer, New Yorker, Feb. 14, 2005, See http://www.newyorker.com/fact/content/?050214fa_fact6
22 This information is based on a collection of declassified U.S. documents and witness statements. Copies are attached or will be provided.
23 Department of Defense document of April 1994, entitled “Suspected Presence of clandestine cemeteries on a military installation.
24 In US Report, Brutal Details of 2 Afghan Inmates Deaths”, by Tim Golden, New York Times, May 20, 2005, see http://www.nytimes.com/2005/05/20/international/asia/20abuse.html?ex=1274241600&en=4579c146cb14cfd6&ei=5088
25 “The Torture Papers”, edited by Karen Greenburg, (Cambridge University Press, 2005). See also, Ali v. Rumsfeld, (filed N.D. Ill. Mar. 1, 2005)
26 Interview by Jennifer Harbury with Mirna Anaya, widow of Herbert Anaya, Nov. 2003.
27 “Torture in El Salvador”, 1986, Comision de Derechos Humanos de El Salvador.
28 Ines Murillo, see “Unearthed Secrets, supra.
29 “Iraqis Tell of Abuse, from Ridicule to Rape Threat”, by Ian Fisher, New York Times, May 14, 2004. See http://www.nytimes.com/2004/05/14/international/middleeast/14PRIS.html?ex=1144296000&en=6533ad9b079b23ea&ei=5070
30 “The Death Convoy of Afghanistan”, Deghanpisheh, Barry and Gutman, Newsweek, August 26, 2002. See http://www.truthout.org/docs_02/08.21A.death.convoy.p.htm
32 U.S. v. Lindh, Proffer of Facts, pg. 18. See: http://files.findlaw.com/news.findlaw.com/hdocs/docs/lindh/uslindh61302dstat.pdf
33 “A Secret World of US Interrogations”, by Dana Priest, Washington Post, May 11, 2004, http://www.washingtonpost.com/wp-dyn/articles/A15981-2004May10.html See also, “U.S. Decries Abuse But defends Interrogations”, by Dana Priest, Washington Post, Dec. 26, 2002, http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A37943-2002Dec25¬Found=true
34 OD 000350 - 000351 Statement of 72nd MP Co., 0-3/NG; Annex to Fay/Jones/Kern Report. 6/6/2004. This report states that detainees were left out in sun to become dehydrated in prep for interrogations. Saw one detainee in interrogation was left with arms outstretched. See http://www.aclu.org/intlhumanrights/gen/13794res20050429.html
35 “Women Involved in Prisoner Abuses: Perpetrators, Enablers and Victims”, by Col. Ann Wright, May 19-20 2005, updated July 19, 2005 at pg.5. Note : The United States military has used manipulation of temperatures to weaken prisoners in many instances in the past. In one startling case, a Vietcong prisoner was kept in a cold room for four before thrown from a helicopter. “A Question of Torture”, by Alfred McCoy, (Metropolitan Books, 2006), at pg.70. This same technique is being used now. See, “CIA’s Harsh Interrogation Techniques Described”, by Brian Ross, ABC News, Nov. 18, 2005. See http://abcnews.go.com/WNT/Investigation/story?id=1322866