Second Periodic Report of the United States of America to the Committee Against Torture

Second Periodic Report of the United States of America to the Committee Against Torture

Submitted by the United States of America to the Committee Against Torture, May 6, 2005

1. Introduction………………………………………………………………1-10
2. Information on New Measures and New Developments Relating
   to the Implementation of the Convention

   Article 1………………………………………………….……………...11-15
   Article 2………………………………………………….……………...16-30
   Article 3………………………………………………………………....31-44
   Article 4…………………………………………………………………45
   Article 5…………………………………………………………………46-53
   Articles 6 and 7………………………………………………………….54
   Article 8…………………………………………………………………55-56
   Article 9…………………………………………………………………57
   Article 10………………………………………………………………..58-60
   Article 11………………………………………………………………..61-63
   Article 12………………………………………………………………..64
   Article 13……………………………………………………………...…65-79
   Article 14……………………………………………………………...…80-85
   Article 15……………………………………………………………...…86-87
   Article 16……………………………………………………………...…88-143

3. Additional Information Requested by the Committee……………………. 144
4. Observations on the Committee’s Conclusions and Recommendations…..145-165
5. Annexes

Annex 1

II. Information on New Measures and New Developments Relating to the Implementation of the Convention

Article 1 (Definition)

11.       The definition of torture accepted by the United States upon ratification of the Convention and reflected in the understanding issued in its instrument of ratification remains unchanged.  The definition of torture is codified in U.S. law in several contexts.

12.       As explained in the Initial Report, this definition is codified at Chapter 113B of Title 18 of the United States Code, which provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if (1) the alleged offender is a national of the United States or (2) if the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.  See 18 U.S.C. §§ 2340 and 2340A, as amended (the extraterritorial criminal torture statute), which is set forth in Annex 5.  On October 26, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. 107-56, Title VIII, § 811(g), amended § 2340A to add an explicit conspiracy provision with strengthened penalties to the substantive offense described in the extraterritorial criminal statute.  This prohibition on torture and conspiracy to torture extends, inter alia, to U.S. employees and U.S. contractors of the United States anywhere in the world outside of the United States, provided that the conduct falls within the enumerated elements of the statute.  At the time of the enactment of 18 U.S.C. §§ 2340, 2340A, 18 U.S.C. § 2 already punished those who aid, abet, counsel, command, induce, procure or cause the commission of an offense against the United States.

13.       On December 30, 2004 the Department of Justice’s Office of Legal Counsel (OLC), which provides legal advice to the Executive Branch, published a memorandum that addresses the legal standards applicable under the extraterritorial criminal torture statute.  This memorandum is available at Annex 3 and at http://www.usdoj.gov/olc/dagmemo.pdf.  Under the language Congress adopted in enacting the statute, in order to constitute “torture” under § 2340 -2340A, the conduct in question must have been “specifically intended to inflict severe physical or mental pain or suffering.”  The December 30, 2004 memorandum separately considers each of the principal components of that key phrase:  (1) the meaning of “severe”; (2) the meaning of “severe physical pain or suffering”; (3) the meaning of “severe mental pain or suffering”; and (4) the meaning of “specifically intended.”  The memorandum supersedes an earlier memorandum of that same office in August 2002 on the same statute, discussing the definition of torture and the possible defenses to torture under U.S. law.  The Department of Justice had previously withdrawn the August 2002 memorandum.

14.       Torture is also defined in the immigration and extradition regulations that implement U.S. obligations under Article 3, as discussed below.  See 8 Code of Federal Regulations (C.F.R.) § 208.18(a) and 22 C.F.R. § 95.1(b).

15.       The term “torture” is also defined in the Torture Victim Protection Act
(TVPA), 28 U.S.C. § 1350, note, which, as discussed in greater detail in paragraph 82 below, permits victims of torture and extrajudicial killings to claim damages for such abuses.

Article 2 (Prohibition)

30.       The United States continues to recognize its obligation not to “expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured.  The United States does not transfer persons to countries where the United States believes it is “more likely than not” that they will be tortured.[i]  This policy applies to all components of the United States government.  The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred.  If assurances were not considered sufficient when balanced against treatment concerns, the United States would not transfer the person to the control of that government unless the concerns were satisfactorily resolved.  The procedures for evaluating torture concerns in the immigration removal and extradition context are described in greater detail below.

31.       Creation of the Department of Homeland Security (DHS).  Since the United States submitted the Initial Report and subsequent to the terrorist attacks of September 11, 2001, the United States Government restructured several agencies within the Executive Branch, creating the U.S. Department of Homeland Security (DHS).  See Homeland Security Act of 2002,
Public Law 107-296, 116 Stat. 2310.  As part of this restructuring, the Immigration and Naturalization Service (INS) was abolished and its functions were transferred from the U.S. Department of Justice to the new DHS.  Pursuant to the Homeland Security Act, all authorities exercised by the Commissioner of the INS, on behalf of the Attorney General, were transferred to the Secretary of Homeland Security.  The Executive Office for Immigration Review (EOIR), whose immigration judges preside over removal proceedings and adjudicate Torture Convention claims, remain within the Department of Justice.  Immigration removal proceedings, and the adjudication of Torture Convention claims within those proceedings, remain unchanged since the Initial Report, but the functions described in that report as implemented by INS are now performed by DHS.[ii]

32.       Observance of Article 3 obligations in the immigration removal context.  As discussed in the Initial Report, regulations implementing Article 3 of the Torture Convention permit aliens to raise Article 3 claims during the course of immigration removal proceedings.  These regulations fully implement U.S. obligations under Article 3 and set forth a fair and rule‑bound process for considering claims for protection.  Individuals routinely assert Article 3 claims before immigration judges within the EOIR, whose decisions are subject to review by the Board of Immigration Appeals, and ultimately, to review in U.S. federal courts.  In exceptional cases where an arriving alien is believed to be inadmissible on terrorism-related grounds, Congress has authorized alternate removal procedures in limited circumstances that do not require consideration or review by EOIR.  See INA § 235(c).  The implementing regulations provide that removal pursuant to section 235(c) of the Act shall not proceed “under circumstances that violate … Article 3 of the Convention Against Torture.”  See 8 C.F.R. 235.8(b)(4).

33.       Article 3 protection is a more limited form of protection than that afforded to aliens granted asylum under the Immigration and Nationality Act (INA).  This more limited form of protection is similar to withholding of removal, see INA§ 241(b)(3), through which the United States implements its non-refoulement obligations under the Refugee Protocol.  An alien granted protection under the Torture Convention may be removed to a third country where there are no substantial grounds for believing that the alien will be subjected to torture.  Furthermore, the regulations contain special streamlined provisions for terminating Article 3 protection for an alien who is subject to criminal and security-related bars, when substantial grounds for believing the alien would be tortured if removed to a particular country no longer exist.  Finally, in a very small number of appropriate cases, pursuant to 8 C.F.R. § 208.18(c), the U.S. may consider diplomatic assurances from the country of proposed removal that the alien will not be tortured if removed there.  In such removal cases, the Secretary of Homeland Security (and in cases arising prior to the enactment of the Homeland Security Act, the Attorney General), in consultation with the Department of State, would carefully assess such assurances to determine whether they are sufficiently reliable so as to allow the individual’s removal consistent with Article 3 of the Torture Convention.  The United States reserves the use of diplomatic assurances for a very small number of cases where it believes it can reasonably rely on such assurances that the individuals would not be tortured.  Since the Initial Report, the United States has removed several individuals to their countries based on assurances that they would not be tortured.  However, as is the case in the extradition context, the United States credits assurances and removes or extradites individuals only when it determines that it can remove or extradite a person consistent with its obligations under Article 3.

34.       In practice, the record demonstrates that individuals seeking protection under Article 3 of the Torture Convention have asserted torture claims and in many cases have obtained protection under the regulations implementing the Convention.  In the period from 1999, when the regulations implementing Article 3 of the Convention went into effect, through 2003, the available data indicates the following statistics regarding grants of protection by immigration judges based on the Torture Convention:[iii]

35.       However, these statistics do not convey the full extent to which U.S. law affords protection against return to individuals who “more likely than not” will be tortured upon their return.  In light of the similarities between the harm feared by asylum and torture applicants, the same application form is used to request both forms of protection and most individuals who assert torture claims simultaneously assert asylum claims.  In such cases, if an individual is eligible for asylum, the immigration judge may grant asylum and thus not reach the torture claim.  Accordingly, the statistics on grants of torture protection cited above may reflect cases where individuals were deemed ineligible for a grant of asylum by virtue of the bars to such relief (e.g., individuals who committed serious crimes) under U.S. law and U.S. obligations under the 1967 Protocol relating to the Status of Refugees or because they failed to demonstrate that the persecution feared would be “on account” of one of the protected grounds specified in the definition of “refugee” set forth at § 101(a)(42) of the Immigration and Nationality Act.  Therefore, for a more complete understanding of the extent to which protection against return is afforded to aliens, it is relevant to note the following available statistics on grants of asylum and withholding of removal:[i]

33. 36.       As the United States implements Article 3, the contours of elements unique to Torture Convention claims, such as the meaning of “torture” and government “acquiescence,” are taking shape in the United States through the development of interpretive case law.  Since the Initial Report, there have been a number of precedent-setting decisions relating to Article 3 protection
    under the Torture Convention issued by the EOIR and by various federal district and circuit courts throughout the United States.  Precedent administrative decisions by EOIR are available at http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html, and include:

    ·         Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (Applicant for Torture Convention protection must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity; therefore, protection does not extend to persons who fear private entities that a government is unable to control);

    ·         Matter of G-A-, 23 I&N Dec. 366 (BIA 2002) (An Iranian Christian of Armenian descent demonstrated eligibility for Torture Convention protection by establishing that it is more likely than not that he will be tortured if deported to Iran based on a combination of factors, including his religion, his ethnicity, the duration of his residence in the United States, and his drug-related convictions in this country.  The evidence of record demonstrated that Armenian Christians were subject to harsh and discriminatory treatment in Iran, that persons associated with narcotics trafficking, like G-A, faced particularly severe punishment, and that Iranians who had spent an extensive amount of time in the United States were perceived to be opponents of the Iranian Government or even pro-American spies.  The combination of these traits, and the evidence of widespread use of torture in Iran, demonstrated that the respondent was likely to be subjected to torture if deported to Iran);

    ·         Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) (For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture set forth at 8 C.F.R. § 208.18(a):  (1) the act must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions.  Neither the indefinite detention of criminal deportees by Haitian authorities nor the substandard prison conditions in Haiti constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally detain deportees or create and maintain conditions in order to inflict torture.  Isolated instances of mistreatment that may rise to the level of torture as defined in the Torture Convention are insufficient to establish that it is more likely than not that the respondent will be tortured if returned to Haiti).

    37.       Relevant decisions by federal courts on Article 3 claims are issued daily and are too numerous to list in this report.  Generally, precedent decisions are publicly available on the Internet.  Attached in Annex 6 is a sampling of federal court decisions on Article 3 claims.

    38.       The United States remains committed to providing Article 3 protection to all aliens in its territory who require such protection, and recognizes that there are no categories of aliens who are excluded from protection under Article 3.  As such, some aliens who are subject to criminal- or security-related grounds and are thus ineligible for other immigration benefits or protection
    may be eligible for protection under Article 3.  As described in paragraph 171 of the Initial Report, the United States provides a more limited form of protection - “deferral of removal” - to aliens otherwise subject to exclusion grounds.  At the time the Initial Report was submitted, implementing regulations authorized continued detention of aliens granted deferral of removal.  In 2001, the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), discussed also in paragraph 132, that existing statutory authority under INA § 241(a)(6) to detain aliens with final orders of removal is generally limited to such detention as necessary to achieve removal in the reasonably foreseeable future.  While the Zadvydas decision limits the authority of the Department of Homeland Security to detain certain aliens granted deferral of removal, DHS remains committed to ensuring the proper balance between United States obligations under the Torture Convention and DHS’s mission to improve the security of the United States.

    39.       Observance of Article 3 obligations in the extradition context.  As described in the Initial Report, in U.S. practice, an extradition judge’s decision whether to certify extraditability is not dependent upon consideration of any humanitarian claims, including claims under the Torture Convention.  After the Secretary of State receives a certification of extraditability from a magistrate or judge, the Secretary of State must determine whether a fugitive who has been found extraditable should actually be extradited to a requesting State.  In determining whether a fugitive should be extradited, the Secretary of State is authorized to consider de novo any and all issues properly raised before the extradition court, as well as any other considerations for or against surrender, including whether it is more likely than not that the fugitive would face torture in the requesting State.

    40.       Pursuant to Department of State regulations set forth in the Initial Report, whenever allegations relating to torture are raised by the fugitive or other interested parties, appropriate policy and legal offices within the Department of State review and analyze information relevant to a particular case.  Information provided by the relevant regional bureau, country desk, or U.S. embassy also plays an important role in the evaluation of torture claims.  Based on the analysis of relevant information, the Secretary of State may decide to surrender the fugitive to the requesting State, deny surrender of the fugitive, or condition the extradition on the requesting State’s provision of assurances, deemed to be credible by the Secretary of State, related to torture or aspects of the requesting State’s criminal justice system that protect against mistreatment, such as regular access to counsel.  Whether such assurances are sought is determined on a case‑by-case basis, fully bearing in mind U.S. obligations under Article 3 of the Torture Convention.

    41.       The Secretary of State will evaluate claims for protection under Article 3 of the Torture Convention after judicial extradition proceedings have been completed.  This position is based on the longstanding “rule of non-inquiry,” which leaves to the consideration of the Secretary of State questions regarding the treatment extraditees may receive following their surrender for extradition.  In U.S. practice, the Secretary of State is uniquely well-suited to determine the risks that a fugitive would be subject to torture upon his return to a requesting state.  In appropriate cases, it may be necessary for the Secretary of State to decide against surrender or to obtain assurances as necessary from the foreign government to persuade the Secretary of State that the United States would be acting in compliance with Article 3 of the Convention.

    
    

    42.       The issue of whether federal courts in the United States can consider an extradition fugitive’s claims under the Torture Convention was litigated in Cornejo-Barreto v. Seifert.  A panel of the United States Court of Appeals for the Ninth Circuit concluded that a fugitive facing extradition has a statutory right to judicial review of his claims under the Torture Convention, which attaches not during the extradition or habeas corpus proceedings, but after all the legal avenues are exhausted and the Secretary of State has signed the surrender warrant.  Cornejo‑Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000).  A different panel of the Ninth Circuit subsequently rejected this conclusion and, in agreement with the position of the Executive Branch, held that the Secretary of State’s determination to extradite a fugitive is not subject to judicial review.  Cornejo-Barreto v. Seifert, 379 F.3d 1075, 1089 (9^th Cir. 2004).  A majority of the Ninth Circuit judges voted to rehear the case en banc, but prior to the date of the rehearing, the Mexican government withdrew its extradition request pursuant to the dismissal of the Mexican state prosecution that served as the basis for the request.  Upon motion of the government, the Ninth Circuit then dismissed the case as moot and vacated the second panel decision.  Cornejo-Barreto v. Seifert, 839 F.3d 1307 (9th Cir. 2004).  In Mironescu v. Costner, 345 F.Supp. 2d 538 (M.D.N.C. 2004) a district court recently held that a petitioner could not seek habeas review, asserting a CAT Article 3 claim, when the Secretary of State had not yet determined whether to extradite the petitioner, but concluded that it was inappropriate, given the stage of the proceedings, to decide whether the petitioner could seek habeas review after the Secretary has made a determination to extradite.

    43.       Since enactment of the Department of State regulations, torture claims have been raised in less than 1% of extradition cases and surrender warrants have been issued in all cases.  In some of those cases, it was determined that the evidence submitted by the claimants provided no basis to conclude that it would be more likely than not that the claimants would be tortured.  In several cases, assurances, which were deemed adequate, were received from the requesting country.

Article 4 (Torture as a criminal offense)

Article 5 (Jurisdiction)

Article 8 (Extraditable offenses)

54.       Consistent with Article 8 of the Convention, any act of torture within the meaning of the Convention continues to be an extraditable offense under relevant United States law and extradition treaties with countries that are also party to the Convention.  The crime of torture continues to fall within the scope of extradition treaties concluded by the United States since the time of its Initial Report.

55.       Since the Initial Report, the United States has received a small number of requests for extradition involving individuals wanted for serious human rights abuses or war crimes.  Since October 1999, the United States extradited Elizaphan Ntakirutimana to the International Criminal Tribunal for Rwanda, which had requested his extradition for genocide, complicity in genocide, and crimes against humanity.

Article 9 (Mutual legal assistance)