The precedent is set

The precedent is set

by digby

Here's a nice little bland report from Newsweek about what happened last week when the US went to the UN for the first time to answer questions about torture since the Obama administration took over:

CAT signatories are required to submit reports on their adherence to the international treaty every four years. After reviewing these reports, the U.N. Committee Against Torture, a body of 10 independent experts, invites government officials from a country to expand on its report. On the first day of the review, the experts ask questions; on the second, the state’s representatives are able to respond.

The in-person review of U.S. practices, which took place on Wednesday and Thursday, marked the first since President Obama took office in 2009.

Obama issued an executive order banning the use of torture in 2009 shortly after taking office. The U.N. review investigated whether the Obama administration stuck to its promise to end the controversial Bush-era enhanced interrogation techniques and how well the administration has upheld the CAT’s terms since.

A day before the review began, the committee took testimony ranging from experts on the death penalty and activists against torture to a former Guantanamo Bay detainee and the parents of Michael Brown.

Representatives for the U.S. included U.S. Brigadier General Richard Gross, Principal Deputy Legal Adviser at the State Department Mary McLeod, and Deputy Assistant Attorney General David Bitkower, to name a few.

Here are some notable moments from the two days of review:

Where does the U.S. think it is restricted by its CAT obligations?

Alessio Bruni, one of the committee’s experts, asked the U.S. representatives to elaborate on whether the government believes the prohibition on torture applies to its officials “abroad without geographic limitation.” But in answering the question, the U.S. reiterated its vague position.

Representatives responded that the CIA no longer operates secret detention facilities and clarified that the U.S. understands the CAT obligations to only apply “where the U.S. acts as a governmental authority,” by which they meant on U.S. soil, in Cuba, and on ships and aircraft.

This answer, however, leaves a key concern of the panel unresolved: whether the Obama administration has fully abandoned the previous one’s interpretation of CAT to exclude U.S. officials’ actions abroad.

What parts of CAT does the U.S. adhere to abroad?

The experts cited instances in which the U.S. violated CAT abroad, and asked for clarification “as to whether the U.S. considers all aspects of the convention to be applicable.”

Bruni wondered how the U.S. was able to reconcile the force-feeding of Guantanamo prisoners with the terms of the treaty, and how it could claim it was not operating secret facilities when it fails to register detainees, calling registration “a first step to prevent torture since his or her identity and location are a sort of deterrent against any form of ill treatment, which needs secrecy to be carried out with total impunity.”

Representative for the U.S., Brigadier General Richard Gross, said that force-feeding, which U.S. officials exclusively referred to as “enteral feeding,” was only used as a last resort to address medical issues such as malnutrition and was evidence of the U.S. holding to its value of preserving life in a humane manner. He added that indefinite detention of prisoners at Guantanamo is justified according to the laws of armed conflict. He said that since the U.S. is in conflict with armed groups like Al-Qaeda, the U.S. can legally hold detainees (without charge) until the end of hostilities.

Another U.S. representative told the committee that the U.S. does not have a unified policy regarding the registration of detainees, but “appropriate records” are kept and “comprehensive safeguards” are in place. The delegation made no mention of detainees of national security or intelligence agencies—the committee’s prime concern.

Has anyone been prosecuted for torture?

Since the U.S. last reported to the committee in 2006, more evidence of violations have been reported by the media or alleged by human rights groups. But the U.S. has done little to demonstrate that it is holding the top officials who gave the orders to torture accountable. Groups like the Advocates for U.S. Torture Prosecutions say that the United States is shielding those responsible, which is in direct violation of its CAT obligations.

“It’s is at the heart of everything,” Deborah Popowski, a clinical instructor at the International Human Rights Clinic at Harvard Law School and a member of Advocates for U.S. Torture Prosecutions said in an interview with Newsweek.

Referring to what she called the “legal framework the U.S. government built to shield itself from liability” (a mixture of legal opinions that distort laws governing torture and the use of the Military Commissions Act to retroactively redefine war crimes to impede prosecution), she added that by “choosing to immunize those responsible, [the U.S. government] legitimizes their actions and the legacy lives on, the precedent is set.”

Former Guantanamo detainee Murat Kurnaz added in an article for The Nation that failure to prosecute “has set a worldwide standard of condoning torture.”

Experts asked for evidence that the U.S. is investigating and prosecuting senior officials. Gross stated that the military is always required to investigate allegations of violations of the law and that there have been thousands of investigations into the mistreatment of detainees since 2001. He claimed that hundreds have been prosecuted for their misconduct—a number often repeated but never fully substantiated. Representative for the U.S. and Principal Deputy Legal Adviser at the State Department Mary McLeod said the U.S. “will prosecute where appropriate.”

Will any proof of torture be released?

“Is the government going to disclose [the force-feeding] videotapes or is the government’s view that security consideration to extinguish the right to complain about torture and ill treatment and to obtain redress?” Bruni asked.

One representative said that the U.S. was ordered on October 3 to publicly disclose the videos and has until December 2 to appeal the ruling. She asserted that U.S.’s reluctance to release the force-feeding video tapes is not an attempt to hide evidence confirming the allegation that the practice is akin to torture. Rather, she claimed, releasing the videos would reveal building design and procedures for detainee movement which should remain classified for purposes of national security.

The Obama administration cannot say to an international body that it is unequivocally not torturing people overseas. There have been no prosecutions. Everybody's hiding behind phony legalisms. It's a sham. The precedent was set and nobody's going to unset it.

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