United States Written Response to Questions Asked by the Committee Against Torture PDF version List of issues to be considered during the examination of the second periodic report of the United States of America Response of the United States of America 1. If, according to the report (CAT/C/48/Add.3 ("the report"), para. 11), "[t]he definition of torture accepted by the United States upon ratification of the Convention … remains unchanged", why did the Department of Justice issue a memorandum in August 2002 (United States Department of Justice, Office of Legal Counsel, Office of the Assistant Attorney General, Memorandum for Alberto R. Gonzales, 1 August 2002, p. 46) which concluded "that torture as defined in and proscribed by section 2340-2340A [of the United States Code] covers only extreme acts?" Please explain how this is compatible with article 1 of the Convention. 2. Please explain the substantive reasons why, if the definition of torture remained unchanged, the August 2002 memorandum was itself replaced in December 2004 (United States Department of Justice, Office of Legal Counsel, Office of the Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, 30 December 2004), by a new memorandum and whether any of the conclusions of the August 2002 memorandum are still valid. How does a memorandum interpret a convention, and is it legally binding? The United States has not changed the definition of torture it accepted upon ratification of the Convention. When the United States Senate provided its advice and consent to ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), it adopted understandings which clarified how the United States would interpret and apply the definition of torture contained in Article 1 of the CAT. The United States included these understandings in its instrument of ratification deposited with the Secretary General in 1994. In light of the fact that the CAT required the imposition of criminal penalties under U.S. law, these understandings were intended to clarify the standards by which the Convention would be applied as a matter of U.S. law, as well as guard against the improper application of the CAT to legitimate U.S. law enforcement activities. These understandings of the definition of torture were also reflected in 18 U.S.C. • 2340 and 2340A, as amended ("the extraterritorial criminal torture statute"), providing for federal criminal jurisdiction over certain extraterritorial acts of torture. Within the United States Government, the U.S. Department of Justice ("DOJ") enforces the criminal laws of the United States. Indispensable to that task is interpreting the scope of criminal statutes such as 18 U.S.C. • 2340 and 2340A. In addition, the Department’s Office of Legal Counsel ("OLC") provides opinions on questions of law, including matters related to statutes and treaties, to the Executive Branch of the United States Government, including the President and heads of departments. In August 2002, the OLC issued a memorandum that provided legal advice on the meaning of the term "torture" under the extraterritorial criminal torture statute (which, as explained below, implements portions of the CAT), as well as addressing issues concerning the separation of powers under the United States Constitution. This opinion was requested to provide operational guidance with respect to the implementation of the criminal statute at the level of detail needed to guide officials who were concerned about compliance with the Convention and domestic law. As noted above, the August 2002 opinion concluded that torture as defined in the criminal statute only covers extreme acts. As explained in the response to Question 3 below, extreme acts were precisely what the CAT was intended to cover. As the Committee notes, the OLC later withdrew that opinion and issued another opinion dated December 30, 2004, which is confined to an interpretation of the extraterritorial criminal torture statute. The December 2004 opinion supersedes the August 2002 opinion in its entirety and thus provides the Executive Branch’s authoritative interpretation of the extraterritorial criminal torture statute. The August 2002 opinion was withdrawn not because it purported to change the definition of torture but rather because it addressed questions that were not necessary to address. In this regard, the December 2004 Memorandum clarified that "[b]ecause the discussion in that [August 2002] memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was—and remains—unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."[1] The purpose of both opinions was to provide legal advice related to a domestic criminal statute. Neither opinion purported to change the definition of torture set out in Article 1 as understood by the United States. The question that the OLC addressed was simply what the terms of that definition, as now reflected in the United States Code, mean. 3. Please explain the compatibility with the Convention of the memorandum of 30 December 2004 (Para. 13 and annex 3 to the report), which states that "[t]he term ‘torture’, in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices …", (Memorandum for James B. Comey, op. cit., p. 6) and that "[t]he [Convention against Torture] thus treats torture as an ‘extreme form’ of cruel, inhumane, or degrading treatment", (Ibid.) and that "[t]he requirement that torture be an extreme form of cruel and inhuman treatment is expressed in article 16 …" (Ibid., p. 7) [of the Convention]. J. Herman Burgers and Hans Danelius (Burgers and Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Martinus Nijhoff, 1988, p. 117, in fine), quoted as authorities in the 30 December 2004 memorandum, expressly state that " … extreme or extremely severe pain [was] suggested during the travaux préparatoires, but the phrase ‘severe pain’ was considered sufficient to convey the idea that only acts of a certain gravity shall be considered to constitute torture". Please explain how this interpretation is compatible with article 1 of the Convention. The language in the CAT that defines torture and that subsequently refers to "other acts of cruel, inhuman or degrading treatment or punishment" reflects the recognition of the negotiators that torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading treatment or punishment. Thus, Article 1(1) of the CAT provides that "the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,…" (Emphasis added). In contrast, Article 16(1) of the CAT does not use the term "severe" but provides, "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1." (Emphasis added). This basic distinction between the severity of the conduct constituting torture and cruel, inhuman and degrading treatment or punishment is reflected in the underlying regime to combat and prevent each form of conduct. Specifically because of the aggravated nature of torture, States Parties agreed to comprehensive measures to prohibit it under their criminal law, to prosecute perpetrators found in territory under their jurisdiction, and not to return individuals to other States where there are substantial grounds for believing that such persons would be in danger of being subjected to torture. In contrast, the obligations regarding cruel, inhuman or degrading treatment or punishment are more limited. The December 2004 memorandum recognizes what is clear from the text and structure of the CAT. As an initial matter, the passages quoted in the Committee’s question were themselves quotations from the Senate Committee Report recommending ratification of the CAT. See Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, S. Exec. Rep. No. 101-30 at 6, 13-14 (1990). Consistent with the Senate Report, the December 2004 memorandum also distinguishes "torture" from "other acts of cruel, inhuman or degrading treatment or punishment" as expressed in Article 16 of the CAT, by explaining that torture is a more severe or extreme form of mistreatment than that described by Article 16. The use of the word "extreme" in these contexts clarifies the meaning of the word "severe" contained in the definition of torture set forth in Article 1 of the CAT and further elaborated in the U.S. understanding. See December 2004 Memorandum at 3 (citing dictionary definitions of "severe" as "extreme") The negotiating history of the CAT confirms the plain language of the treaty, and that the definition of torture was reserved for those acts involving more severe pain and suffering, as distinguished from cruel, inhuman or degrading treatment or punishment. During the negotiations of the CAT, both the United States and the United Kingdom emphasized the intensity and severity required in order for an act to be considered "torture." See Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in particular, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Summary Prepared by the Secretary-General In Accordance With Commission Resolution 18, E/CN.4/1314, December 19, 1978; see also, J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 44, 80 (1988) ("CAT Handbook"). Moreover, as the Committee’s own question indicates that the word "severe" adequately included the concept of "extreme," and the negotiating history of the CAT confirms that use of the word "severe" was sufficient to convey the idea that acts of an extreme gravity were covered by that term. It is also worth noting that the term "extremely severe" would be different from either "severe" or "extreme." It should also be noted that the original Swedish draft of the CAT also included a provision that highlighted that torture should be distinguished from cruel, inhuman or degrading treatment or punishment by virtue of the more severe, or aggravated nature of the acts involved in torture. Article 1(2) of the original Swedish draft provided that "[t]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." [2] This approach – distinguishing torture from lesser forms of cruel, inhuman, or degrading treatment or punishment– is consistent with other international law sources. These include the 1975 Declaration on the Protection of All Persons from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and reflected a distinction between torture and lesser forms of cruel, inhuman or degrading treatment or punishment contained in other international law sources, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and caselaw from the European Court of Human Rights[3] and European Commission on Human Rights and the International Criminal Tribunal for the Former Yugoslavia.[4] This distinction has also been noted by commentators. For example, Burgers and Danelius note that Article 16 implies "that torture is the gravest form of [cruel, inhuman or degrading] treatment or punishment."[5] Professor Evans notes that the CAT "formalises a distinction between torture on the one hand and inhuman and degrading treatment on the other by attributing different legal consequences to them."[6] Additionally, the record of the U.S. ratification deliberations demonstrates the longstanding U.S. view that torture can be distinguished from other forms of mistreatment or abuse by virtue of the severity of the underlying acts. Thus, when the United States Department of State transmitted the CAT in May 1988 to the Senate for its advice and consent to ratification, it explained that "[the CAT] seeks to define ‘torture’ in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned." It also noted that "‘torture’ is thus to be distinguished from lesser forms of cruel, inhuman or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture." It further explained that "the requirement that torture be an extreme form of cruel and inhuman treatment is expressed in Article 16, which refers to ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture’ [and that] the negotiating history indicates that the [italicized] portion of this description was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind." (Emphasis added in the original.) This analysis was subsequently adopted by the Senate in its report recommending that the Senate consent to ratification of the CAT. See S. Exec. Rep. No. 101-30 at 13-14. Accordingly, the discussion in the December 2004 memorandum clarifies that the use of "severe" in the definition of torture as ratified by the United States indicates that the Convention defined torture in a relatively limited fashion that involved an intensity not characteristic of less extreme forms of mistreatment or abuse. 4. Please explain why the interpretation of both memorandums seems to be much more restrictive than previous United Nations standards, namely the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975, art. 1.2), which states that "[T]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." As described above, the interpretation of the term "severe" contained in the December 2004 memorandum reflects the understanding, express in the text of the Convention, that torture constitutes a more aggravated form of abuse than that covered by the "cruel, inhuman or degrading treatment or punishment" described in Article 16 of the CAT. This is consistent with and is not more restrictive than the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which distinguishes torture from other lesser forms of abuse, in part on the basis of the severity of the underlying acts. 5. Considering that the reservation of the State party to the Convention states that the "provisions of articles 1 through 16 of the Convention are not self-executing" (Annex 4 to the report), the only legislation that has been enacted to give effect to the Convention was a law giving the United States courts criminal jurisdiction over extraterritorial acts of torture (See the core document (HRI/CORE/1/Add.49), para. 141 and the initial report (CAT/C/28/Add.5), para 47). Is the State party actively considering formally incorporating all the provisions of the Convention into domestic law? If not, how will the State party ensure that its legislative, judicial, administrative and other measures fully meet the obligations of the Convention? What guarantees and controls does the State party have to ensure the monitoring of the activities of law enforcement officials in prisons and other detention centres under the jurisdiction of states of the Union or under its jurisdiction or de facto control? (De facto control of the State party, means, e.g., territories, or parts of territories, where United States troops are operating under United States command.) The statement made by the United States regarding the non-self-executing nature of the Convention, which was included in the U.S. instrument of ratification, is a declaration regarding the domestic implementation of the CAT and is not a reservation intended to exclude or modify U.S. rights or obligations under the Convention. It was only necessary to enact legislation regarding the extraterritorial offense of torture in order to fully implement the Convention at the time of our ratification. The reason for this is that at the time of ratification existing United States law fully met the obligations of the United States under the CAT, as clarified by the Reservations, Understandings, and Declaration of the United States. No further legislative changes were required, nor are they required today. Prior to U.S. ratification of the Convention, the United States carefully reviewed U.S. federal and state laws for compliance with the terms of the CAT. The United States concluded that, with the sole exception of prohibiting certain acts of torture committed outside the territory of the United States, U.S. state and federal law covered all of the offenses stated in the Convention. The United States filled this lone shortcoming by enactment of 18 U.S.C. 2340A, prohibiting certain acts of torture committed outside the territory of the United States. The United States ensures compliance with its CAT obligations through operation and enforcement of its existing laws. As discussed in paragraphs 16, 44 and 155 of the Second Periodic Report, acts which would constitute torture when committed inside the United States are punishable under state or federal criminal law. As the United States has explained before, there is no specific federal crime styled as "torture" for acts occurring within U.S. territory. The reason for this is simply that any act of torture falling within the Convention’s definition, as ratified by the United States, is criminally prosecutable, for example, as aggravated assault or battery or as mayhem in cases of physical injury; as homicide, murder or manslaughter, when a killing results; as kidnapping, false imprisonment or abduction where an unlawful detention is concerned; as rape, sodomy, or molestation; or as part of an attempt, or a conspiracy, or a criminal violation of an individual’s civil rights. These laws, which meet the requirements of the CAT, are binding on governmental officials and are enforced through a variety of administrative procedures, criminal prosecutions, and civil suits. With regard to torture, "cruel and unusual punishments" have always been proscribed by the Eighth Amendment to the U.S. Constitution. This Amendment is directly applicable to actions of the federal government and, through the Fourteenth Amendment, to those of the constituent states. See Robinson v. California, 370 U.S. 660, reh'g den. 371 U.S. 905 (1962); Estelle v. Gamble, 429 U.S. 97 (1976). While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the U.S. Constitution, as incorporated by the Fourteenth Amendment to the U.S. Constitution, create a minimum legal protection against the actions of state and local governments. Every state constitution also contains detailed guarantees of individual liberties, in most cases paralleling the protections set forth in the federal bill of rights. For example, nearly all state constitutions expressly forbid cruel and unusual punishment (including acts constituting "torture") and guarantee due process protections no less stringent than those in the federal Constitution. Finally,U.S. law provides various avenues for seeking redress, including financial compensation, in cases of torture and other violations of constitutional and statutory rights relevant to the Convention. Besides the general rights of appeal, these can include any of the following, depending on the location of the conduct, the actor, and other circumstances: • Seeking a writ of habeas corpus, which, in certain circumstances, allows judicial review of whether there is a valid reason for detention; With respect to the Committee’s final question in this paragraph, of all the mechanisms listed above, CRIPA is perhaps the most direct source of the federal government’s authority to enforce the federal constitutional rights of persons in jails and prisons at the state and local level. CRIPA authorizes the U.S. Department of Justice ("DOJ") Civil Rights Division ("CRD") to enforce the constitutional and statutory rights of persons confined to state and local institutions, including prisons, jails, and juvenile justice facilities. The federal government’s authority to investigate juvenile justice facilities also flows from provisions of Section 14141, which authorize the Attorney General to bring civil actions when administrators of juvenile justice systems engage in a pattern or practice of violating juveniles’ federal rights. Federal investigations focus on myriad issues depending on the type of institution and the nature of alleged unconstitutional conditions. Issues include, for example, physical and sexual abuse, medical and mental health care, fire safety, security, adequacy of treatment and training, and, with regard to juveniles, special education services. Once DOJ enters into an agreement to require reform of a facility, it works vigilantly to ensure compliance. To assess a facility’s compliance status, DOJ requests and reviews documents from the facility which demonstrate its degree of compliance. Such documents include written policies and procedures, incident reports, investigative files, and patient records. After reviewing these documents, DOJ conducts on-site facility inspections with teams of consultants. DOJ uses consultants who are subject matter experts, like medical and psychiatric doctors, protection from harm specialists, and penological experts. These consultants accompany DOJ personnel during on-site inspections to conduct interviews of facility staff and inmates, tour the facility, and observe operations. Following the site inspections, DOJ typically provides the facility with a written assessment of its compliance status. DOJ’s process is a collaborative one in which it works with the facility to promptly identify and remediate issues of non-compliance. DOJ’s consultants provide technical assistance tailored to address the facility’s identified deficiencies. This approach generally brings facilities into compliance. When, however, a facility fails to comply with a consent agreement, DOJ takes enforcement action, such as filing a motion to hold the facility in contempt of court or to appoint a special master to facilitate compliance with the provisions of the decree. Since 2001, DOJ has concluded formal investigations of 42 jails, prisons, and juvenile facilities. It is currently monitoring agreements involving 97 jails, prisons, and juvenile facilities. See also the response to Question 29 below. 6. Is the transfer of detainees from one place of detention to another duly registered and is this registrar public? Do foreigners detained under the jurisdiction of the State party receive any consular assistance? Please provide updated and detailed data regarding the incarcerated population in the State party’s territory (Initial report) and in areas under the jurisdiction of the State party, including in Afghanistan, Iraq and Guantánamo Bay (Annex 1 to the report, pp. 50 and 71). Regarding the latter, please provide information on their exact legal status, the offences they are detained for, for what period and the process which determines the length of their detention. Do detainees have access to legal advice, medical treatment and family visits? Is there any independent review of the grounds of detention and their continuing applicability? Please provide detailed information on the matter. This question is exceptionally broad. It asks for information concerning persons detained both within and outside the United States. With respect to persons detained in the United States, this question seeks information about persons detained at the federal, state, county and municipal levels. While relevant individual federal, state and local authorities maintain appropriate administrative records relating to such information, the United States does not maintain a unified national database. Consequently, the U.S. response to this question will not be comprehensive. Registration of Detainee Transfers The Convention Against Torture has no provision requiring the registration of detainee transfers. The relevant federal, state, and local authorities have their own policies governing how detainee transfers are registered. For example, the Bureau of Prisons’ public website (www.bop.gov) contains an Inmate Locator tool that reflects each inmate’s current location; if the place of confinement changes because of transfer, the results are reflected via this tool, which is readily available and accessible to the public. With regard to consular notification and access procedures, such procedures are not a matter that is addressed by the Convention. Under the Vienna Convention on Consular Relations, the United States is obligated to inform foreign nationals arrested or detained within a consular district that they may request consular notification and access. The United States is also party to several bilateral consular conventions that require mandatory notification whenever a national of the contracting State is arrested or detained within a consular district. In most cases (i.e., under the Vienna Convention on Consular Relations), the foreign national then has the option to decide whether to have consular representatives notified of the arrest or detention. In other cases (i.e., countries with mandatory notification bilateral consular treaties), however, the foreign national's consular officials for the district in which the individual is detained must be notified of an arrest and/or detention regardless of the foreign national's wishes. In cases involving mandatory notification treaties, the United States only releases the information necessary to fulfill its treaty obligation. In most cases, our obligation is limited to notice of the arrest or detention and does not include sharing other details. Data regarding the Incarcerated Population in the United States As of December 31, 2004, there were approximately 2,267,787 people incarcerated in the United States, of whom 1,421,911 were held in federal and state prisons (not including the 74,378 state and federal inmates incarcerated in local jails), 713,990 in local jails, 102,338 in juvenile facilities, 15,757 in U.S. Territory prisons, 9,788 in facilities operated by or exclusively for the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security, 2,177 in military prisons and 1,826 in Indian country jails. As of March 9, 2006, approximately four percent of the Bureau of Prisons' total inmate population (189,025) were in pre-trial detention status (not yet sentenced) and one percent of the population was confined for the Bureau of Immigration and Customs Enforcement. Pre-trial detainees are typically confined in the Bureau's Administrative facilities, which are institutions with special missions, such as the detention of pretrial offenders or the treatment of inmates with serious or chronic medical problems; some pre-trial inmates are held in jail units located within federal prisons that house sentenced offenders. Generally, unless otherwise specifically noted "policies and standards applicable to persons committed to the custody of the Attorney General or the Bureau of Prisons apply also to pretrial inmates as defined in •551.101" (from Program Statement 7331.04, Pretrial Inmates). For example, pretrial inmates meet with lawyers and have family visits, they are provided with medical care and are allowed to meet with representatives from their respective consulates. Additionally, they are offered the opportunity to participate in institution programs and services in a manner consistent with safety and the orderly running of the institution. Administrative facilities include Metropolitan Correctional Centers (MCCs), Metropolitan Detention Centers (MDCs), Federal Detention Centers (FDCs)--all of which are jail-type facilities, Federal Medical Centers (FMCs), the Federal Transfer Center (FTC), and the Medical Center for Federal Prisoners (MCFP). Administrative facilities are capable of holding inmates in all security categories. Federal jails (MCC's, MDC's and FDC's) are located in Honolulu, HI; Houston, TX; Miami, FL; Oakdale, LA; Philadelphia, PA; Seattle, WA; Brooklyn, NY; Guaynabo, Puerto Rico; Los Angeles, CA; Chicago, IL; New York, NY; and San Diego, CA. The Bureau also contracts with privately-managed facilities, and to a lesser extent, state or local facilities, to manage its population. Internally, the Bureau of Prisons uses an online, real-time, inmate database system that maintains detailed information about each inmate. This system, known as Sentry, provides the official count of inmates at each BOP site, and it enables the Bureau to maintain proper custody of inmates, as well as keep information regarding sentence computations, programs, and assignments. A public record of inmates' (including detainees') locations is available on the internet at the Bureau of Prisons’s public website (www.bop.gov) which contains an Inmate Locator tool that reflects each inmate’s current location. If place of confinement changes because of transfer, the results are reflected via this tool, which is readily available and accessible to the public. Persons held in Department of Homeland Security Custody The Department of Homeland Security (DHS) oversees two component agencies that are charged with securing the borders and enforcing the immigration and customs laws. U.S. Immigration and Customs Enforcement (ICE) handles interior enforcement, while U.S. Customs and Border Protection (CBP) generally handles enforcement at the borders. Agents of both component agencies possess investigation, arrest, and detention authority. With respect to persons under the control of the United States Department of Defense (DoD), detainees are accounted for fully as required under DoD policies. Detainees under the control of the Department of Defense are issued an internment serial number, or "ISN," as soon as practicable, normally within 14 days of capture. Because of operational security considerations, public disclosure of transfers or releases from DoD control are not announced publicly until the movement of detainees from DoD control is completed. As explained in the response to Question 13 below, although not required by the CAT for persons outside of U.S. territory, the U.S. government will not transfer an individual to a country where it is more likely than not that the individual will be tortured. Operational Demographics for Department of Defense Detainees As of February 20, 2006, the Department of Defense holds approximately 490 detainees at its facilities in Guantanamo Bay, Cuba; approximately 400 detainees at its facilities in Afghanistan; and approximately 14,000 detainees at its facilities in Iraq. Basis, Classification, and Legal Status Individuals detained by the Department of Defense in Afghanistan and at Guantanamo are held pursuant to the Order of the President of the United States of November 13, 2001 (Federal Register: November 16, 2001 (Volume 66, Number 222), Page 57831-57836). This Order was discussed in the Annex to the Second Periodic Report. In addition, the classification of their legal status, the basis for their detention, and their expected duration of detention, is further described in the Memorandum of the President of the United States, February 7, 2002. This memorandum is discussed at length on pages 53 and 54 of the Annex to the Second Periodic Report. The standard for conditions under which detainees detained by the Department of Defense in Afghanistan and at Guantanamo are to be held, including their access to medical care, is set forth in the Memorandum of the President of the United States, February 7, 2002. Further, with respect to detention operations at Guantanamo Bay, Cuba, the United States would redirect the Committee’s attention to pages 61-62 of the Annex to the Second Periodic Report, and with respect to the conditions of detention in Afghanistan, to page 62 of the Annex to the Second Periodic Report. Similarly, the conditions of individuals detained at DoD detention facilities in Iraq is discussed at length on pages 74-76 of the Annex to the Second Periodic Report. Medical Care The United States recognizes that medical care is an important part of ensuring the safe and humane detention of individuals under its custody. The United States therefore considers it appropriate to describe to the Committee the measures taken to ensure adequate medical care for detainees. While the information provided herein relates to medical care for detainees at Guantanamo, applicable Department of Defense policy on medical care for detainees[8] governs Department of Defense operations worldwide. Further information is provided at Annex 1 to these answers. Processes available to review the status of detainees at Guantanamo, potentially resulting in their release or transfer, are described in detail at pages 54-62 of the Annex to the Second Periodic Report. With respect to Afghanistan, those processes are described on page 57 of the Annex to the Second Periodic Report. With respect to Iraq, these processes are described at pages 71-72 of the Annex to the Second Periodic Report. Access to Counsel As described in the subsection II(g) of Annex I of the Second Periodic Report, detainees who have filed habeas corpus claims in the U.S. federal courts have access to counsel. 7. According to information before the Committee (Report of the Working Group on Enforced or Involuntary Disappearances (E/CN.4/2005/65), para. 364), the State party has established secret detention facilities, including on-board vessels, and holds unacknowledged detainees with no access to the International Committee of the Red Cross (ICRC), no notification of families, no oversight with regard to their treatment, and in most cases no acknowledgement that they are even being held. Please provide a list of all detention facilities where detainees are being held under the de facto effective control of the State party’s authorities (Conclusions and recommendations of the Committee against Torture: United Kingdom of Great Britain and Northern Ireland - Dependent Territories (CAT/C/CR/33/3), para. 4 (b)), outside its territory or on State party vessels, as well as information on the number, nationality, charges against and exact legal status of these persons. Why have such secret detention facilities been established? Does the State party assume responsibility for alleged acts of torture perpetrated by its own public agents outside its territory but in territories under its jurisdiction or de facto control (See note 12), as well as in cases where those acts are perpetrated by persons who are not public agents but are subject to the control of the State party? As a preliminary matter, we would note that the customary law of armed conflict does not require States to provide the ICRC with access to unlawful combatants who are in their custody. Even where the Geneva Conventions apply, those conventions specifically acknowledge that, where a Party to the conflict is satisfied that an individual protected person on its territory is definitely suspected of or engaged in activities hostile to the security of the State, such persons are not entitled to the rights and privileges afforded by the Convention as would be prejudicial to the security of the State. Similarly, in occupied territory, where an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication with the outside world because they pose a security threat. Of course, in all cases, such persons must be treated with humanity. Moreover, it is the policy of the United States not to comment on allegations of intelligence activities. However, the U.S. government is clear in the standard to which all entities must adhere. As noted in paragraph 7 of the Second Periodic Report, all components of the U.S. government are obligated to act in compliance with the law, including all United States constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment, as defined in U.S. law. The U.S. government does not permit, tolerate, or condone unlawful practices by its personnel or employees under any circumstances. As already noted, 18 U.S.C. • • 2340 & 2340A make it a crime for a person acting under the color of law to commit, attempt to commit, or conspire to commit torture outside the United States. In addition, pursuant to the Detainee Treatment Act of 2005, the prohibition on cruel, inhuman, and degrading treatment or punishment applies as a matter of law to protect any persons "in the custody or under the physical control of the United States Government, regardless of nationality or physical location." 8. In view of the numerous allegations of torture and ill-treatment of persons in detention under the jurisdiction of the State party and the case of the Abu Ghraib prison, what specific measures have been taken to identify and remedy problems in the command and operation of those detention facilities under the jurisdiction of the State party? What measures have been undertaken to ensure that the ICRC has appropriate access to all such facilities and to all detainees, and that its reports are made known to sufficiently senior members of the chain of command for purposes of implementation? The ICRC transmits its confidential communications to senior officials in the Department of Defense, including military commanders in Afghanistan, Iraq, and Guantanamo, and to other senior officials of the United States Government. The Department of Defense has established procedures to ensure that ICRC communications are properly routed to senior leadership and acted upon in a timely manner. The Department of Defense works with the ICRC to identify and correct matters of concern that come to light. Although our dialogue with the ICRC is confidential, we take seriously the matters the ICRC raises and have made changes and improvements based on its recommendations. Representatives of the ICRC meet routinely with DoD and other U.S. government officials to discuss detention issues. We value the relationship between the U.S. government and the ICRC, and DoD officials will continue to discuss detention issues with the ICRC. 9. Under the State party’s domestic law, is it possible to derogate from the principle of the absolute prohibition of torture? Have any measures taken by the State party derogated from this prohibition? Can any provision of the Patriot Act of 2001 be interpreted as a possible derogation? What legal or administrative measures has the State party put in place to ensure that the Convention’s prohibition against torture is not derogated from under any circumstances? Under U.S. law, there is no derogation from the express statutory prohibition on torture. Nothing in the Patriot Act can be read to be a derogation from this prohibition. The legal and administrative measures undertaken by the United States to implement this prohibition are described in detail in the Initial Report and the Second Periodic Report. 10. Please comment on information transmitted to the Committee that criminal responsibility of perpetrators of torture may be waived under the President’s authority as Commander-in-Chief. Does the State party attribute to any person the right to authorize torture or ill-treat anyone under any circumstances? If so, to whom? How is such an authorization compatible with article 2 of the Convention? Has there been an independent investigation regarding the possible responsibility of the high-ranking officials of the Administration, including the CIA, the Department of Defense, the Department of Justice and the Armed Forces, for authorizing or consenting in any way, including through the issuance of orders or guidelines, to acts committed by their subordinates, especially during the interrogation of detainees, which could be considered as acts of torture? The December 2004 Memorandum stated that it "supersede[d] the August 2002 Memorandum in its entirety" and clarified that "[b]ecause the discussion in that [August 2002] memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was—and remains—unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."[9] Under Article 2 of the CAT, "[a]n order from a superior officer or a public authority may not be invoked as a justification of torture." Moreover, under Article 2, "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The United States stands by these obligations under the CAT. As noted in paragraph 6 of the Second Periodic Report, the United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority may be invoked as a justification or defense to committing torture under the CAT. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. government. With regard to investigations conducted by the Department of Defense, the Department has conducted numerous investigations into all aspects of its detention operations following the events of Abu Ghraib. It has conducted over 12 major reviews and continues to examine this issue. Further, the United States refers the Committee to Section III(B)(1) of the Annex to the Second Periodic Report which describes in detail the reviews and investigations that have already occurred. Of particular relevance to the Committee’s question is the citation to the testimony of Vice Admiral Church to the U.S. Senate Armed Services Committee that after his lengthy investigation – the broadest review of interrogation policies to date – he had concluded that "clearly there was no policy, written or otherwise, at any level, that directed or condoned torture or abuse; there was no link between the authorized interrogation techniques and the abuses that, in fact, occurred."[10] In addition, U.S. policy regarding the care and treatment of detainees under its control is clear. Alberto Gonzales, then Counsel to the President, stated: "The administration has made clear before and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws. . . . [L]et me say that the U.S. will treat people in our custody in accordance with all U.S. obligations including federal statutes, the U.S. Constitution and our treaty obligations. The President has said we do not condone or commit torture. Anyone engaged in conduct that constitutes torture will be held accountable."[11] The CAT requires a State to "ensure that all acts of torture are offences under its criminal law." Every act of torture within the meaning of the CAT, as ratified by the U.S. Senate, is an offense under U.S. criminal law. The U.S. Constitution and numerous state and federal criminal laws prohibit conduct that amounts to torture within the United States. The extraterritorial criminal torture statute, 18 U.S.C. • • 2340-2340A, also makes it a crime for any person outside the United States to commit, attempt to commit, or conspire to commit torture under the color of the law. If it appears that the criminal laws have been violated, then those violations are investigated and prosecuted as appropriate by the relevant authorities. Under Article 2 of the CAT, "An order from a superior officer or a public authority may not be invoked as a justification of torture." Moreover, under Article 2, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The United States stands by these obligations under the CAT. The U.S. government is committed to investigating and holding accountable those who engage in acts of torture or other unlawful treatment of detainees. With regard to any defenses for "ill-treat[ment]" of detainees, Article 2 of the CAT does not address such matters, and it is not clear to us what other provision of the CAT the question might be based on. 12. Have the several versions of interrogation rules, instructions and methods, specially regarding persons suspected of terrorism, that have been adopted been consolidated for civilian and military use, especially for the CIA and the military intelligence services? Are persons detained outside the State party, but under its jurisdiction, protected by the same norms regarding interrogation rules, instructions and methods? As required under the law, only those interrogation techniques authorized by and listed in the United States Army Field Manual on Intelligence Interrogation are authorized for the interrogation of detainees under the control of the Department of Defense personnel, without regard to whether interrogations are conducted by military or civilian interrogators. The Department of Defense issued on December 30, 2005, specific instructions notifying every Command of this requirement, as well as all DoD Components and field activities. The question also asks about any interrogation rules, instructions, and methods that may have been adopted by the CIA. As already noted, the United States does not comment publicly on alleged intelligence activities. But, as also already noted, any activities of the CIA would be subject to the extraterritorial criminal torture statute and the Detainee Treatment Act’s prohibition on cruel, inhuman, or degrading treatment or punishment. 13. Please provide detailed information on the provisions implementing article 3 of the Convention in domestic law and on the procedures, including judicial remedies, to ensure that it is implemented in practice, including in respect of persons under the jurisdiction of the State party outside its territory. Have any decisions prohibiting expulsion, refoulement or extradition to another State under article 3 of the Convention been revoked? Are any categories of foreign persons considered as having committed a crime or suspected of having committed a crime automatically excluded from the protection of article 3 of the Convention? As explained in paragraph 30 of the Second Periodic Report, the United States does not transfer persons to countries where it determines that it is "more likely than not" that they would be tortured. This applies to all components of the U.S. Government. In both the Initial Report and the Second Periodic Report, the United States provided detailed information on the implementation of Article 3 in the immigration removal and extradition contexts. In these respective contexts, regulations permit aliens to assert Article 3 claims as a defense to either removal or extradition. The regulations of the Department of Homeland Security ("DHS") that provide for the implementation of Article 3 in the immigration removal context and the regulations of the Department of State ("DOS") that provide for the implementation of Article 3 in the extradition context were provided in the Initial Report, were cited in the Second Periodic Report, and are referenced again in Annex 2. Removal context With respect to Article 3 claims raised in removal proceedings, paragraphs 32-38 of the Second Periodic Report describe how such claims are considered. Paragraph 32 of the Second Periodic Report describes how individuals may assert Article 3 claims before immigration judges within the Department of Justice’s Executive Office for Immigration Review ("EOIR"), whose decisions are subject to review by the Board of Immigration Appeals, and ultimately, to review in U.S. federal courts. For further information regarding appeals of such claims, please see the response to Question 15 below. In cases involving individuals who are subject to criminal- or security-related exceptions, CAT protection from refoulement is still available, known as "deferral of removal." See 8 CFR • • 208.17, 1208.17. The regulations implementing Article 3 of the CAT in the immigration removal context are publicly available on the Internet and well-known to attorneys representing aliens in removal proceedings. The statutes and regulations governing removal proceedings before an immigration judge provide for ample process, such as the right to representation by counsel of the alien’s choosing (at no expense to the Government), 8 U.S.C. • 1229a(b)(4)(A); 8 C.F.R. • •1003.16, 1240.3, 1240.10(a); competent, impartial interpretation of the immigration proceedings, 8 C.F.R. • •1003.33, 1240.3; and a reasonable opportunity to examine and object to evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the U.S. government, 8 U.S.C. • 1229a(b)(4)(B); 8 C.F.R. • 1240.10(a). Additional process rights are discussed in response to Question 15. Generally, an alien applying for protection from removal under Article 3 has the burden of proving that he is more likely than not to be tortured in the designated country or countries of removal. See 8 C.F.R. • 1206.16(c)(2). In assessing whether it is "more likely than not" that an applicant would be tortured if removed to the proposed country, all evidence relevant to the possibility of future torture is required to be considered, including, inter alia, (1) evidence of past torture inflicted upon the applicant; (2) a pattern or practice of gross human rights violations within the proposed country of removal; and (3) other relevant information regarding conditions in the country of removal. 8 C.F.R. • 1208.16(c)(3). The evidence concerning the likelihood of torture must be particularized to the applicant’s circumstances. See Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002). If the immigration judge determines that an alien would more likely than not be tortured in the country of removal, the alien is entitled to protection consistent with Article 3. 8 C.F.R. • 1208.16(c)(4). The protection afforded will be in the form of withholding of removal or deferral of removal. Aliens subject to the national security, criminal, or related grounds for exclusion from eligibility for withholding of removal, see 8 U.S.C. • 1231(b)(3)(B), will receive only deferral of removal. See id. In light of the categorical prohibition contained in Article 3, the United States does not "revoke" Article 3 protection from removal to a particular country for an individual who has been granted such protection as long as it is "more likely than not" that the individual would be tortured in that country. The removal regulations contain procedures for terminating Article 3 protection when substantial grounds for believing the alien would be tortured if removed to a particular country no longer exist. See 8 C.F.R. • •208.17(d)-(f), 1208.17(d)-(f), 1003.2, 1003.23. In addition an alien granted such protection may be removed to a third country where there are no substantial grounds for believing that the alien will be subjected to torture, an action that is fully consistent with Article 3 of the Convention. (See 8 C.F.R. • • 208.16(f), 208.17(b)(2), 1208.16(f), 1208.17(b)(2).) Finally, in a small number of appropriate cases an alien who has been granted Article 3 protection may nevertheless be removed to the country from which he was originally granted protection against removal if the United States has obtained assurances it deems credible from the country of proposed removal that the alien would not be tortured if removed there. See 8 C.F.R. • •208.18(c), 1208.18(c). In such a case, action would be based upon the judgment of the United States that, with this assurance, it is no longer more likely than not that the person would be tortured. 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 8 U.S.C. • 1225(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." 8 C.F.R. • 235.8(b)(4); see also 8 C.F.R. • • 208.18(d), 1208.18(d). The statutory and regulatory framework for expedited removal proceedings under 8 U.S.C. • 1225(c) is more streamlined than the general process for alien removal under 8 U.S.C. • 1229a. The regulatory process, however, ensures that the final decision to remove an arriving alien under 8 U.S.C. • 1225(c) is made at a senior level within DHS. In terms of assessing whether the proposed removal would be consistent with Article 3 of the CAT, consideration would be given to relevant evidence, including but not limited to evidence of past torture suffered by the alien, whether there is a pattern or practice of gross human rights violations in the proposed country of removal, and other information bearing upon conditions in the designated country or countries of removal. Extradition context The procedures for evaluating Article 3 claims in the extradition context are discussed in detail in paragraphs 39—43 of the Second Periodic Report. The regulations of the Department of State ("DOS") at 22 C.F.R. Part 95, which DOS promulgated pursuant to section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277, outline the procedures for considering the question of torture when the Secretary of State determines whether a fugitive will be extradited. Whenever allegations relating to torture are brought to DOS’s attention by the fugitive or other interested parties, appropriate policy and legal offices within DOS with regional or substantive expertise review and analyze information relevant to the particular case in preparing a recommendation to the Secretary. DOS’s Bureau of Democracy, Human Rights, and Labor, which drafts the U.S. Government’s annual Human Rights Reports, is a key participant in this process. The views of the relevant regional bureau, country desk, or U.S. Embassy also play an important role in DOS’s evaluation of torture claims, because its regional bureaus, country desks, and Embassies are knowledgeable about matters such as human rights, prison conditions, and prisoners’ access to counsel, in general and as they may apply to a particular case in a requesting State. DOS will consider information concerning judicial and penal conditions and practices of the requesting State, including the Department’s annual Human Rights Reports, and the relevance of that information to the individual whose surrender is at issue. The Department will examine materials submitted by the fugitive, persons acting on his behalf, or other interested parties, and will examine other relevant materials that may come to its attention. In determining whether a fugitive will be extradited, the Secretary of State must determine whether it is more likely than not that the particular fugitive will be tortured in the country requesting extradition. Based on the analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State or to deny surrender of the fugitive. Or, in some cases, the Secretary might condition the extradition on the requesting State’s provision of assurances related to torture or aspects of the requesting State’s criminal justice system that protect against mistreatment, such as that the fugitive will have regular access to counsel and the full protections afforded under that State’s constitution or laws. Whether such assurances are sought is decided on a case-by-case basis. In several cases in recent years, the Secretary signed a warrant only after the Department engaged in a diplomatic dialogue and received adequate assurances of humane treatment from the requesting State. See response to Question 18 below for further information describing when diplomatic assurances are pursued and how they are evaluated. The DOS regulations governing Article 3 claims are publicly available and well-known to attorneys representing fugitives in extradition proceedings. Fugitives may submit whatever documentation they consider relevant for consideration of their claims. The decision of the Secretary of State regarding any claims for protection under Article 3 of the CAT is not subject to judicial review, consistent with U.S. law and practice governing extraditions.[13] The "rule of non-inquiry" leaves to the consideration of the Secretary of State questions regarding the treatment extraditees may receive following their surrender for extradition. As is the case in the immigration removal context, all fugitives in extradition proceedings in the United States are protected by Article 3 of the CAT. Regarding the Committee’s question related to "revocation", as explained above, claims for protection under Article 3 are made by the Secretary of State and are not reviewable. Thus, a decision by the Secretary to prohibit the extradition of a person to another State under Article 3 of the Conventioncannot be revoked. Territorial scope of Article 3 On its face, the text of Article 3 speaks of actions taken with respect to persons already present in the territory of a State. Both in the cases of expulsion, the deportation of an individual, and extradition, the transfer of a person pursuant to an extradition treaty to another country for the purpose of prosecution, there is no question that such terms describe conduct taken against individuals within a State Party’s territory. Accordingly, if there is any debate at all as to whether Article 3 applies outside the territory of a State Party, it turns on whether the term "return (‘refouler’)" prohibits the return of persons by a State Party in those circumstances covered by Article 3, regardless of where the officials and the individual benefiting from the protection are located. In the view of the United States, the meaning of the term "return (‘refouler’)" contained in Article 3 of the CAT is limited to actions occurring within the territory of a State Party. Construing the same term, "return (‘refouler’)," as employed in Article 33 of the Refugee Convention, the U.S. Supreme Court found that both the text and the negotiating history of Article 33 "affirmatively indicate that it was not intended to have extraterritorial effect." in Sale vs. Haitian Centers Council, Inc., 509 U.S. 155, 179 (1993). In examining the text of Article 33, the Supreme Court found two aspects of Article 33’s text persuasive. The first aspect concerns Article 33(2) of the Refugee Convention, which exempted from Article 33(1)’s non-refoulement protection "a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is." As Article 3 of the CAT contains no such limitation, the Supreme Court’s discussion of this provision is not relevant to the question at hand. [14] However, the second aspect of the Supreme Court’s interpretation of the use of the term "return (‘refouler’)" in Article 33 of the Refugee Convention and Protocol is relevant to the interpretation of that same term in Article 3 of the CAT. Specifically, the Court found that the legal meaning of the term "return," as modified by reference to the French "refouler" (the English translations of which included "repulse," "repel," "drive back," and "expel"), implied that "‘return’ means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination." Id. at 182. The Supreme Court thereby concluded that the non-refoulement protection contained in the Refugee Convention and Protocol was not intended to govern the conduct of States Parties outside of their national borders and noted that "[f]rom the time of the Convention, commentators have consistently agreed with this view." Id. The Court further examined the negotiating history of Article 33 of the Refugee Convention and concluded that the negotiating history supports the Court’s interpretation of Article 33 not to impose obligations on States Parties outside of their territory.[15] The negotiating history of Article 3 of the CAT confirms the view that the provision was intended to apply to the territory of a State Party, and not to persons who had not yet entered the country. The original Swedish proposal spoke only of expulsion or extradition, and did not employ the term "return (‘refouler’)." However, when the draft was revised to expand the prohibition to include "return (‘refouler’)," considerable discussion ensued over the advisability of including the term, including references to ambiguity surrounding the extra-territorial reach of the provision. At no point was there agreement that the term was intended to apply to individuals located outside the territory of a State Party. Additionally, both the text and the negotiating history of the CAT make clear that negotiators used explicit language applying certain provisions of the CAT extra-territorially when they intended those provisions to have extra-territorial effect.[16] The negotiators’ failure to do so in Article 3 further confirms that there was no express intent to apply Article 3 extra-territorially. Finally, the record of proceedings related to U.S. ratification of the CAT demonstrates that at the time of ratification, the United States did not interpret Article 3 to impose obligations with respect to individuals located outside of U.S. territory. When the Secretary of State transmitted the CAT to the Senate for its advice and consent to ratification, the State Department’s analysis of Article 3 indicates that it understood that the non-refoulement obligations it was undertaking related to removal or extradition from the United States, and not to extraterritorial action by U.S. officials. In the immigration deportation (removal) context, the State Department indicated that the new protection afforded by Article 3 could be implemented by simply extending the protections then-available under U.S. law implementing the Refugee Protocol to "cases of torture not involving persecution on one of the listed impermissible grounds." See Message from the President of the United States Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted by Unanimous Agreement of the United Nations General Assembly on December 10, 1984, and Signed by the United States on April 18, 1988. Treaty Doc. 100-20, at 6. The State Department explained, "This prohibition applies to expulsion or return of persons in the United Statesto a particular State, and does not grant a right to seek entry or to avoid expulsion to other States." (Emphasis added.) Id. By emphasizing that Article 3 of the CAT does not grant a right to seek entry, the State Department thereby indicated its view that Article 3 did not apply to persons who had not yet entered U.S. territory. The State Department’s analysis discussed the implementation of Article 3 solely in terms of the authorities of the Attorney General under the Immigration and Nationality Act and of the Secretary of State in cases of surrender pursuant to extradition treaties.[17] This analysis was subsequently adopted by the Senate in its report recommending that the Senate provide its advice and consent to ratification of the CAT. See S. Exec. Rep. No. 101-30 at 16-17. Although as a legal matter Article 3 does not impose obligations on the United States with respect to an individual who is outside the territory of the United States, as a matter of policy, the United States does not transfer persons to countries where it believes it is "more likely than not" that they will be tortured. This policy applies to all components of the U.S. Government and with respect to individuals in U.S. custody or control regardless of where they may be detained. In the case of interdictions of migrants at sea, as a matter of policy, in addition to screening individuals for fears of persecution, the United States screens individuals to assess whether it is "more likely than not" that they face torture. This policy finds support, in part, from language contained in section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-227, 112 Stat. 2681-822, which directed that "it shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." Also, as noted in the Annex to the Second Periodic Report, with respect to individuals detained by the U.S. Armed Forces at the U.S. Naval Base in Guantanamo Bay, Cuba, after determinations are made that a detainee no longer continues to pose a threat to the U.S. security interests or that a detainee no longer meets the criteria of enemy combatant and is eligible for release or transfer, the United States generally seeks to return the detainee to his or her country of nationality. It is always of a particular concern to the United States in such cases that the foreign government concerned will continue to treat the detainee humanely, in a manner consistent with its international obligations. U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not that the person will be tortured, or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds. The essential question in evaluating government assurances is whether the competent U.S. government officials believe it is more likely than not that the individual will be tortured in the country to which he is being transferred. If a case were to arise in which the assurances obtained from the receiving government are not sufficient when balanced against treatment concerns, the United States would not transfer an individual to the control of another government unless the treatment concerns were satisfactorily resolved. Finally, in those exceptional cases where the United States conducts renditions of individuals, the United States does not transport anyone to a country if the United States believes he or she will be tortured. Where appropriate, the United States seeks assurances it considers to be credible that transferred persons will not be tortured. 14. Does the reservation of the State party to article 3 of the Convention restrict or change the protective scope of this provision? Please explain the practical differences between article 3 of the Convention and the State party’s reservation to article 3 (Para. 33 of the report.). How and by whom is the determination that a person is "more likely than not" to be tortured made? Please provide examples, in abstracto if necessary. This question turns on the meaning of the phrase "substantial grounds." The U.S. understanding made at the time the United States became a State Party to the Convention was made precisely to provide operational content to what is otherwise a somewhat open-ended treaty term. As an initial matter, contrary to the suggestion made in the question, the United States did not take a reservation to Article 3 of the Convention. Rather, as described in the Initial Report and the Second Periodic Report, at the time the United States became a State Party to the CAT, then-President Clinton on September 19, 1994 formally signed the U.S. instrument of ratification of the Convention, which contained, inter alia, the following understanding: [T]he United States understands the phrase ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in Article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured.’ At the time the United States reviewed whether to become a State Party to the CAT, it considered whether to provide more specific definitional content to the phrase "substantial grounds for believing that he would be in danger of being subjected to torture." The reasons for the understanding entered into by the United States are described clearly in the August 30, 1990 Report from the U.S. Senate Committee on Foreign Relations: "Article 3 provides that no State Party shall expel, return, or extradite a person to another State where substantial grounds exist for believing that he would be in danger of being subjected to torture. Under current U.S. law, an individual may not normally be expelled or returned where his "life or freedom would be threatened * * * on account of race, religion, nationality, membership in a particular social group, or political opinion". 8 U.S.C. 1253(h)(1). The U.S. Supreme Court has interpreted this provision to mean that a person entitled to its protections may not be deported to a country where it is more likely than not that he would be persecuted. INS v. Stevic, 467 U.S. 407 (1984). To clarify that Article 3 is not intended to alter this standard of proof, the following understanding is recommended: "The United States understands the phrase, "where there are substantial grounds for believing that he would be in danger of being subjected to torture," as used in Article 3 of Convention, to mean "if it is more likely than not that he would be tortured."" At the time the United States became a State Party to the CAT, it considered that the standard enunciated in the U.S. understanding was merely a clarification of the definitional scope of Article 3, rather than a statement that would exclude or modify the legal effect of Article 3 as it applied to the United States. As the scope of U.S. obligations under Article 3 are set forth in the understanding quoted above that was contained in the U.S. instrument of ratification, there is no difference between the scope of the standard set forth in the U.S. understanding and the obligations assumed by the United States under Article 3. With respect to the question of who is the competent authority to make the determinations with respect to Article 3, please see the answers to Questions 13 above and 15 and 17 below and in the discussions of Article 3 in the Initial Report and the Second Periodic Report. 15. May foreigners who claim the right not to be removed to another State under article 3 of the Convention appeal to the courts against the decision of the Secretary of State? Do asylum‑seekers have the right to appeal against removal? Please provide detailed information on any such procedure. Does an appeal against a removal have suspensive effect? Please provide information on the number of appeals filed and their outcome. Does the State party have a list of "safe third countries" for removal? If so, how is it created and maintained? Regarding the Committee’s first question above concerning individual appeals of Article 3 decisions by the Secretary of State to the courts, the United States would like to clarify that the Secretary of State is the decision-maker on Article 3 claims only in the extradition context. As discussed at paragraph 42 of the Second Periodic Report, and in response to Question 13 above and Question 18 below, the issue of whether the federal courts in the United States can consider an extradition fugitive’s claims under the Torture Convention was litigated in Cornejo-Barreto v. Seifert and additional cases. Regarding the Committee’s question concerning appeal rights for asylum seekers, appeal rights and procedures for aliens in immigration removal proceedings are described in paragraphs 31-37 of the Second Periodic Report and in paragraphs 159, 169, 170, 172-174 of the Initial Report. Although protection under the 1951 Convention relating to the Status of Refugees is beyond the scope of the Committee’s area of responsibility, the administrative and judicial appeals processes are similar for applicants for asylum and applicants for protection from torture. Additional detail is provided below. Determinations of whether a person more likely than not would face torture if removed are most frequently made in removal proceedings under the immigration laws of the United States. Those determinations are made, in the first instance, by immigration judges within the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), who are appointed by the Attorney General. See 8 C.F.R. • • 1003.0, 1003.1, 1003.14, 1208.16-.18, 1240.11(c); see also Foreign Affairs Reform and Restructuring Act (FARRA), Pub. L. No. 105-227, Div. G., Title XXII, • 2242(b), 112 Stat. 2681, 2681-822, codified as note to 8 U.S.C. • 1231 (directing "the heads of the appropriate agencies" to "prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention"). With the exception of expedited removal procedures under 8 U.S.C. •1225 described below, an alien seeking protection from removal from the United States under Article 3 of the CAT may appeal an adverse decision of the immigration judge on the alien’s CAT protection claim to the Board of Immigration Appeals (BIA). See 8 C.F.R. • 1003.1(b). The BIA is an administrative appellate tribunal within the U.S. Department of Justice. See generally 8 C.F.R. • 1003.1 (describing the organization, jurisdiction, composition, and authority of the BIA). Board Members are "attorneys appointed by the Attorney General to act as the Attorney General’s delegates in the cases that come before them." 8 C.F.R. • 1003.1(a)(1). The BIA conducts de novo review of questions of law and reviews findings of fact, including findings relating to prevailing human rights practices in the designated country or countries of removal, under a "clearly erroneous" standard. 8 C.F.R. • 1003.1(d)(3). At the conclusion of the removal hearing, the alien is provided notice of the opportunity to file an appeal to the BIA. 8 U.S.C. • 1229a(c)(4); 8 C.F.R. • 1003.3(a)(1). The appeal must be filed within 30 days of an immigration judge’s decision. 8 C.F.R. • 1003.38(b). Both before an immigration judge and upon appeal to the BIA, the alien may be represented by an attorney or an accredited representative. See 8 C.F.R. • • 1003.16(b), 1003.38(g). The EOIR maintains and provides to pro se aliens a list of pro bono legal service providers in the locality of the immigration court. See 8 C.F.R. • 1003.61-.65. An alien may file a written brief in support of his appeal in accordance with BIA rules and procedures. 8 C.F.R. • • 1003.3(c), 1003.38(f). Subject to certain time, numerical, and jurisdictional limitations, the alien may also file with the immigration judge or the BIA a motion to reopen removal proceedings based on previously unavailable information concerning changed country conditions that bear materially upon the alien’s eligibility for protection from removal under Article 3 of the CAT. See 8 U.S.C. • 1229a(c)(6); 8 C.F.R. • • 1003.2, 1003.23. If an immigration judge denies the motion to reopen, the alien may appeal the denial to the BIA. The U.S. Department of Homeland Security (DHS) may file a brief in opposition to the alien’s appeal. 8 C.F.R. • 1003.3(c)(1). In addition, DHS may appeal to the BIA an immigration judge order granting an alien’s application for protection from removal under Article 3 of the CAT. DHS may also request that the Attorney General review a BIA decision concerning an application for protection under Article 3. See 8 C.F.R. • 1003.1(h)(1)(iii). DHS, however, may not challenge a BIA or Attorney General decision in the federal courts. If the BIA dismisses the alien’s administrative appeal or denies the alien’s motion to reopen, the alien may file a petition for review of the BIA’s decision with the appropriate federal court of appeals. See 8 U.S.C. • 1252(a)(1), (4). An alien—including an alien seeking to challenge a BIA decision denying his application for protection under Article 3 of the CAT—who is removable by reason of having committed a serious criminal offense may obtain judicial review only of constitutional claims or questions of law raised upon a petition for review with the appropriate court of appeals. 8 U.S.C. • 1252(a)(2)(D); Enwonwu v. Gonzales, 438 F.3d 22, 33-35 (1st Cir. 2006). The alien must exhaust his administrative law remedies before EOIR before proceeding to the federal court of appeals. 8 U.S.C. • 1252(d)(1); Ivanishvili v. United States Dep’t of Justice, 433 F.3d 332, 343 (2d Cir. 2006). If unsuccessful before the federal court of appeals, the alien may file a petition for certiorari with the United States Supreme Court, but there is no appeal as of right to the Supreme Court. Federal law precludes any judicial review of an action, decision, or claim raised under the CAT, except as part of the review of a final order of removal to the extent permitted under the immigration laws. See FARRA • 2242(d); 8 C.F.R. • • 208.18(e); 1208.18(e). The sole and exclusive means for judicial review of any cause or claim under Article 3 of the CAT is through a petition for review filed with an appropriate court of appeals challenging a final order of removal. 8 U.S.C. • 1252(a)(4). In expedited removal proceedings under 8 U.S.C. • 1225(b), an arriving alien may challenge a determination of a DHS asylum officer that the alien does not have a "credible fear" of torture in the designated country or countries of removal. See 8 C.F.R. • • 208.30(g)(2), 1208.30(g)(2). That challenge lies exclusively with the immigration judge. See id.; 8 C.F.R. • 1003.42. A negative "credible fear" determination, if sustained by the immigration judge, cannot be further appealed to the BIA or to the federal courts. See 8 U.S.C. • 1252(a)(2)(A)(iii); 8 C.F.R. • • 208.30(g), 1208.30(g)(2)(iv)(A). The same is true with respect to "reasonable fear" determinations in the expedited removal procedures under 8 U.S.C. • • 1228(b) (administrative removal of certain criminal aliens) and 1251(a)(5) (reinstatement of removal for aliens previously removed). See 8 C.F.R. • • 208.31(g), 1208.31(g). Regarding the Committee’s question about whether an appeal against a removal has a suspensive effect,a timely administrative appeal to the BIA of an immigration judge’s order of removal does have suspensive effect. An order of removal entered by an immigration judge is not considered to be final until the BIA has affirmed the order or the time for filing an administrative appeal has expired. See 8 U.S.C. • 1101(a)(47)(B); see also 8 C.F.R. • • 1003.39, 1241.1. Removal of the alien cannot be effectuated "while the appeal is pending . . . before the [BIA]." 8 C.F.R. • 1003.6(a). The filing of a motion to reopen or motion to reconsider, on the other hand, generally does not have suspensive effect. See 8 C.F.R. • • 1003.2(f), 1003.6(b). The alien, however, may request a stay of removal pending consideration of the motion. Id. The filing of a petition for review with a federal court of appeals likewise does not have suspensive effect. To forestall removal pending consideration by the court of appeals, the alien must obtain a stay of removal from the court. See 8 U.S.C. • 1252(b)(3)(B) (service of petition for review does not stay removal pending court's decision unless court so orders); Tesfamichael v. Gonzales, 411 F.3d 169, 171-76 (5th Cir. 2005). Regarding the Committee’s final questions above concerning "safe third countries" for removal,the United States does not maintain a list of countries that are presumed to be safe for purposes of consideration of claims for protection against persecution or torture. Each protection application is considered on its own merits. We note, however, that the United States and Canada have entered into a "Safe Third Country Agreement." The Agreement permits the United States, subject to a host of important exceptions, to return to Canada two specific classes of non-Canadian aliens seeking protection under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol or under the CAT: those attempting to enter the United States from Canada at a land border port-of-entry and those who assert protection claims while being removed by Canada through the United States. Upon return to Canada, the alien’s protection claims will be considered under Canadian law. Similarly, certain aliens arriving in Canada from the United States, either at a shared land border port-of-entry, or in transit during removal by the United States, may be returned to the U.S. for consideration of their protection claims under U.S. law. Under the specific terms of the Agreement, an individual referred by either Canada or the United States to the other country cannot be removed to a third country until an adjudication of the individual’s protection claims has been made. The Agreement also provides that an individual returned to the other signatory country by the United States or Canada shall not be removed onward to any other country pursuant to any other Safe Third Country Agreement or regulatory designation. 16. According to information before the Committee, the State party has adopted a policy to send, or to assist in the sending of persons to third countries, either from the State party’s territory or from areas under its jurisdiction, for purposes of detention and interrogation. How many persons have been affected by this policy, to which countries were they sent, and what measures have been adopted to ensure that they will not be subjected to torture? Please comment on allegations (Report of the Special Rapporteur on torture (E/CN.4/2004/56/Add.1), paras. 1818-1833) that persons are detained without charges in certain countries at the request of the State party’s authorities. As has been stated publicly and in prior responses,[18] the United States does not comment on information or reports relating to alleged intelligence operations. The United States and other countries, however, long "have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice." The United States considers rendition "a vital tool in combating international terrorism," which "take[s] terrorists out of action, and save[s] lives." [19] However, as is true with the case of immigration removals and extraditions, described more fully in response to Question 13 and Question 18, the United States acts in accordance with its obligations under the CAT and does not transport individuals to a country when it believes that the individuals would more likely than not be tortured in that country. As an initial matter, it should be noted that enforced or involuntary disappearances are not synonymous with acts of torture. As noted above, acts of torture are prohibited under United States law and are punishable by law. In addition, U.S. federal and state penal codes proscribe abductions and kidnappings, regulate the release or detention of defendants, and prohibit acts that would constitute an enforced or involuntary forced disappearance. The United States notes that the non-refoulement protection of Article 3 of the CAT does not explicitly prohibit the return of individuals to countries where they may face an enforced disappearance.[20] However, during both immigration removal and extradition proceedings, an individual may raise any fears that he or she have regarding forced disappearance. The United States further notes that it also rigorously implements its obligations under the Protocol Relating to the Status of Refugees, including the non-refoulement provisions contained therein. 18. Please provide further information on the procedure used to obtain diplomatic assurances that a person will not be tortured if removed or extradited to another State (Para. 33 of the report). Have there been any cases where those assurances were not considered adequate and, therefore, the person was not removed or extradited? Please provide examples, in abstracto if necessary. Please provide details of the assurances that must be fulfilled by the receiving country in order for the State party to remove or extradite a person. What monitoring mechanisms are in place to assess if the assurances have been honoured (Para. 43 of the report)? Please provide further information on the "rule of non-inquiry" of the Secretary of State (Para. 41 of the report). What purpose does this rule serve? 19. According to information before the Committee, persons have been sent to countries which the State party itself considers not to respect human rights (The State Department’s annual Country Reports on Human Rights Practices, http://www.state.gov/g/drl/rls/hrrpt/2004/c14136.htm), where they have been tortured and ill-treated. Were those cases investigated, and what was the result of the investigations? Are all the State party’s agencies, when operating outside the State party’s territory, under the obligation to respect the non-refoulement rule? Please explain "extraordinary renditions", the procedures followed and the guarantees extended. Insofar as the question on extraordinary renditions is meant to refer to the practice of rendering a person to a place where he or she will be tortured, the United States does not engage in extraordinary renditions. To the extent that the question is meant to refer to rendering persons outside normal extradition procedures, the United States has acknowledged that it, like other countries, has long used procedures in addition to extraditions or other judicial procedures to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice. While reiterating its view that Article 3 of the CAT does not by its terms apply to individuals outside of U.S. territory, the United States would also like to emphasize what was stated in paragraph 30 of the Second Periodic Report: the United States does not transfer persons to countries where it believes that it is more likely than not that they will be tortured. This policy applies to all components of the United States Government with respect to individuals in U.S. custody regardless of whether they are inside or outside of U.S. territory. For additional information concerning renditions, please see the response above to question 16 and the material cited therein. With regard to the rest of the question, it is important to emphasize that Article 3 does not per se prohibit the return or transfer of individuals to countries with a poor human rights record nor does it apply with respect to returns that might involve "ill treat[ment]" that does not amount to torture.[21] Rather, the United States understands Article 3 to require that an individualized determination as to whether an individual "more likely than not" will face torture in a particular country. As the United States explained in response to Question 18, if, taking into account all relevant information, including any assurances received, the United States believes that a person more likely than not will be tortured if returned to a foreign country, the United States would not approve the return of the person to that country. The U.S. Government’s views on the application of the non-refoulement protection in Article 3 outside of U.S. territory are provided in response to Question 13 above. Article 4 20. Does torture, under the State party’s federal law, constitute a specific type of criminal offence when committed inside the State party (United States Code, Title 18, part I, chapter 113C, para. 2340)? If so, please provide examples. If not, is the State party actively considering making torture a specific federal crime, if committed inside its territory? How is this lacuna reconciled with the necessity of preventing torture and, specifically, with the obligations of the State party under articles 1, 2 and 4 of the Convention? According to the State party report (Para. 16 of the report), acts of torture "may be prosecuted" as other criminal acts (assault, homicide, kidnapping, rape, etc.). Please explain how and under which other offences acts of torture can be prosecuted. As the United States has explained before, there is no specific federal crime styled as "torture" for acts occurring within U.S. territory. The reason for this is simply that any act of torture falling within the Convention’s definition, as ratified by the United States, is criminally prosecutable, for example, as aggravated assault or battery or as mayhem in cases of physical injury; as homicide, murder or manslaughter, when a killing results; as kidnapping, false imprisonment or abduction where an unlawful detention is concerned; as rape, sodomy, or molestation; or as part of an attempt, a conspiracy, or a criminal violation of an individual’s civil rights. At the time the United States became a State Party to the CAT, it carefully reviewed the definition contained in Article 1 of the CAT and existing criminal law that would apply with respect to torture occurring within the territory of the United States. It determined that acts falling within that d |
