US Regresses on Torture and Guantanamo at Treaty Review

On Oct. 17 and 18, the United States appeared before United Nations Human Rights Committee as part of the fifth periodic review of U.S. compliance with its obligations under the International Covenant on Civil and Political Rights (ICCPR). All States party to the ICCPR go through this process, which includes (among other related steps): advance reporting from the country undergoing review on the status of implementing the rights that the ICCPR enshrines; an in-person session with the committee; followed by the Committee issuing concluding observations and recommendations.

This is the first time that the United States has been reviewed since 2013-2014. We were in Geneva, one of us representing the Center for Victims of Torture, the other as long-time counsel for Guantanamo detainee Ammar al Baluchi – alongside nearly 150 extraordinary civil society representatives – to help prepare the Committee to question the U.S. delegation, and to urge U.S. officials to answer those questions substantively, candidly, and, where appropriate, with commitments to take the steps necessary to bring U.S. policies and practices into line with the ICCPR.

Civil society presented on issues ranging from Indigenous rights, to reproductive rights, to criminal legal reform, and much more. Our focus was the United States’ failure to reckon with human rights abuses it perpetrated (and in some cases continues to perpetrate) after the September 11, 2001, attacks — in particular, U.S. torture, and indefinite detention at Guantanamo Bay that continues to this day.

As a threshold matter, it is worth noting that the January 2021 report the United States submitted in connection with the review was clearly prepared during the Trump administration, and so – somewhat astonishingly – promotes certain policies that the Biden administration rejected upon taking office. For example, the report states:

E.O. 13823 of January 30, 2018, Protecting America through Lawful Detention of Terrorists, revoked section 3 of E.O. 13492, which ordered the closure of the detention facilities at U.S. Naval Station Guantanamo Bay. The United States has no plans to close the detention facilities at Guantanamo Bay.

The Biden administration could have chosen to update the report, but it did not. That choice made their delegation’s responses to the Committee that much more consequential, to distinguish the “human rights presidency” from the previous one.

By our count, the Committee asked over 20 questions related to U.S. torture and/or the Guantanamo detention facility, across three separate interventions. With limited exception, the U.S. delegation either didn’t respond at all, or gave answers that contradicted U.S. obligations under the ICCPR.

Below is an overview of what the Committee asked, what the United States said, and what we believe the Committee should conclude and recommend going forward.

On Guantanamo

The most substantive answer the United States gave in response to the Committee’s Guantanamo-related questions was about transfers. The delegation provided an overview of the transfer process, including some helpful detail on factors the United States considers when evaluating a transfer country’s humane treatment assurances. The delegation also said explicitly: “we need the support of other countries,” an important call on the world stage.

Following the exchange about transfers, however, things went progressively south. The Committee also asked about the status of E.O. 13823 (see above); for a closure timeline; whether the United States would end the military commissions; what measures the United States is taking “to ensure the inadmissibility” of torture-tainted evidence at the military commissions; for the United States’ views on using the federal criminal justice system for detainee prosecutions; what the United States is doing to address the finding by the Special Rapporteur on Counterterrorism and Human Rights – who recently visited Guantanamo (more on that here) – that “conditions and treatment of detainees at [Guantanamo] amount to ongoing, cruel, inhuman, and degrading treatment, and may also meet the legal threshold for torture”; and whether the United States would provide detainees independent medical care, including torture rehabilitation.

The United States reiterated President Joe Biden’s pledge to close Guantanamo, but did not mention that EO 13823 remains in place, or explain why. The delegation didn’t address at all its plans for the military commissions; the government’s continuing fight to use, or defend the use, of torture-tainted evidence; or its thinking on federal court prosecutions. With respect to the Special Rapporteur’s finding on conditions and treatment of detainees, the United States said only that it “respectfully but emphatically disagree[s].”

Finally, on the disastrous medical situation at Guantanamo, the United States claimed that it “is committed to providing appropriate medical care for detainees … and to providing care that is comparable to that which US military personnel receive while serving at [Guantanamo].”

The United States’ report to the Committee contained no meaningful context or additions to these disappointing responses, or non-responses.

On the basis of this record, and the reports submitted by civil society organizations, we believe the Committee should conclude that:

  • While there is a continuing intent to close the Guantanamo Bay detention facility, and progress being made toward that end, the United States has no timeline for closure, and has maintained an unacceptably slow pace of review and transfers over three years.
  • The Guantanamo military commission prosecutions continue to violate due process rights enshrined in the ICCPR, including the bar on use of torture-tainted evidence.
  • The remaining detainee population suffers from complex medical issues that cannot be treated by the medical program currently in place at Guantanamo. Moreover, while military servicemembers are flown off base for all complex care, detainees are not. The U.S. failure to provide comprehensive medical care violates Articles 2, 7, and 10 of the ICCPR – constituting an active violation of the prohibition on torture.
  • The United States has not provided information responsive to the Special Rapporteur on Counterterrorism and Human Rights’ finding that conditions and treatment of detainees violate Article 7 of the Covenant.

We believe that the Committee should recommend:

  • The United States must expedite review, clearance, and transfer of all uncharged detainees.
  • The military commissions should be discontinued, the United States must affirm that it will not use or defend the use of torture-tainted evidence, and any detainee prosecutions in any forum should comply with all due process requirements under the ICCPR.
  • The United States should institute a medical program for the remaining detainees that is independent and able to treat complex medical conditions, including in emergencies.

Transparency and Accountability for Post-9/11 US Torture

On issues related to post-9/11 U.S. torture, the Committee asked if the United States plans “to thoroughly investigate the human rights violations resulting from the [CIA torture] program and to publicly post its findings?” Specifically, whether perpetrators would be “held accountable and punished,” including – where evidence supports it – through prosecutions?

On secrecy, the Committee asked whether the United States. would declassify (to the extent necessary) and publicly disclose the final report prepared by Assistant U.S. Attorney John Durham, who from 2008–2012 conducted a narrow and limited criminal investigation into the CIA torture program, after which he concluded no charges should be brought against anyone. The Committee also asked whether the United States plans to declassify and release the full, nearly 7,000-page report culminating the Senate Intelligence Committee’s years-long investigation into CIA the torture program? And if not, then would the United States “at least allow security cleared counsel for detainees to have access to the report?”

Finally, the Committee asked “what legal remedies are available to individuals who were detained for years even decades, sometimes without facing a trial?”

Here is the sum-total of the U.S. response:

As to remedies for torture, we note that we’re not aware of any acts constituting torture perpetrated in the United States that could not be prosecuted at the federal or state level for lack of domestic legal authority. U.S. law also provides a range of potential civil remedies for victims. These include as appropriate injunctions compensatory damages and punitive damages. In addition, the federal government is authorized to bring civil actions to enjoin acts or patterns of conduct that violate constitutional rights, including those that would amount to torture or ill treatment.

The delegation’s silence on the rest of the Committee’s post-9/11 torture-related questions was deafening. Not once did any U.S. official even reaffirm the U.S. commitment to the prohibition on torture. The 2021 report isn’t any better; it similarly recites the laws that prohibit torture and/or, at least in theory, allow victims to seek remedies. This marks a significant regression from a decade ago, when the United States at least substantively engaged on many of these issues (even if not fully to our satisfaction).

On the basis of the United States’ record, we believe the Committee should:

  • Note the U.S. failure to respond to any questions regarding transparency and accountability for post-9/11 U.S. torture, at a moment when the United States is pursuing accountability for torture by other states.

Finally, the Committee should recommend that:

  • The United States should declassify the CIA’s so-called “Rendition, Detention and Interrogation” program in its entirety – as well as any other information related to torture by other U.S. government agencies – and publicly disclose all reports, investigations, and other materials related to the State’s use of torture.
  • All victims of U.S. torture should have an enforceable right to remedy for their treatment, including but not limited to medical care and rehabilitation.
  • Consistent with the steps toward additional transparency that the Committee recommends, the United States should thoroughly and independently investigate credible allegations of torture, where appropriate seek to prosecute perpetrators, and otherwise ensure that anyone directly or indirectly involved in torture is held accountable.

* * *

It was unfortunate last week to watch the U.S. delegation parrot some of the same debunked talking points regarding detainee treatment and conditions at Guantanamo that we’ve heard for two decades, contrary to the information available about the grim realities. It was equally regrettable that the United States ignored essentially every substantive question about post-9/11 U.S. torture. Far from taking the opportunity to renew its commitment to human rights and international law on this issue set, the United States instead waffled its way through inapposite remarks or simply disregarded the Committee’s questions entirely, perhaps hoping there would be no follow-up. This is the stuff from which charges of hypocrisy get leveled, especially when both the United States and the Committee – across their opening and closing remarks – emphasized the importance of deep and meaningful engagement in the ICCPR review process.

We hope that the Committee’s Concluding Observations serve as a wake-up call to the administration that it is beyond time to abandon the failed post-9/11 policies that violate the United States’ international obligations, especially if the United States hopes to lead on accountability for high crimes in the future.

IMAGE: Razor wire lines the fence of the maximum security detention center at the U.S. Naval Station at Guantanamo Bay, Cuba. (Photo by John Moore/Getty Images)

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