Amnesty International:The US Congress is currently considering legislation which would have major implications for the treatment, detention and possible trial of people held in US custody in the "war on terror", and would fail to uphold the USA's international legal obligations.
Salon reports:With George W. Bush eager for a star-spangled signing ceremony as Congress adjourns this week for the election season, the House approved the administration bill by a 253-168 margin, while the Senate was expected Thursday to reject the last four amendments standing in the way of passage.
The legislation, which was prompted by a June Supreme Court decision applying the Geneva Conventions to prisoners held by U.S. forces, had originally provoked a well-publicized struggle over placing legal limits on interrogation techniques.
The American Library Association has passed this resolution against torture:
Resolution Against the Use of Torture as a Violation of Our Basic Values as Librarians
The following resolution was adopted unanimously by the elected representatives of the Social Responsibilities Round Table (SRRT) on June 26, 2004. An amended version of this resolution was passed by ALA Council on June 30, 2004.
This SRRT resolution represents a revision of the SRRT resolution On Intellectual Freedom & the Use of Torture in War or Peace, approved by SRRT Action Council on January 19, 2002. No vote on that resolution was taken in ALA Council in January 2002 due to the lack of a quorum.
SRRT is a body within the American Library Association but does not and should not be taken to speak for the Association as a whole. In this resolution SRRT speaks only on its own behalf.
WHEREAS, The American Library Association (ALA) is among the preeminent defenders of intellectual freedom and government openness in the US; and
WHEREAS, Intellectual freedom, our primary value as librarians, cannot be more seriously violated than by forcing speech or enforcing silence through systematic violence by government against detained individuals; and
WHEREAS, The US government has proven its readiness to use torture (including practices such as hooding, shackling, drugging, sleep deprivation, etc.) in the interrogation of suspected terrorists or their suspected accomplices in its "war on terror"; and
WHEREAS, The use of torture and coercive interrogative practices is inhumane, illegal, and destructive of the democratic sensibilities of a free society, to which we as an Association and as a profession are committed; and
WHEREAS, The secrecy which attends the use of torture violates our commitment to open government and the dissemination of true and accurate information of our government's actions; and
WHEREAS, The violence of torture violates our commitment to the rule of law as a protector of the integrity and dignity of the human person; and
WHEREAS, The barbarity of torture fundamentally violates our commitment to the preservation of the human spirit; and
WHEREAS, The threat of torture or the use of torture and similar practices of coercing testimony, confessions, information is universally condemned under international law [e.g. the Geneva Convention, Article 3 and 31 and by the Universal Declaration of Human Rights, 1948, Article 5] and (a) the Fourth Amendment's right to be free of unreasonable search or seizure (which encompasses the right not to be abused by the police), (b) the Fifth Amendment's right against self-incrimination (which encompasses the right to remain silent during interrogations), (c) the Fifth and the Fourteenth Amendments' guarantees of due process (ensuring fundamental fairness in criminal justice system) and (d) the Eighth Amendment's right to be free of cruel or unusual punishment];
BE IT RESOLVED, That ALA condemns the use or threat of torture by the US government as a barbarous violation of human rights, intellectual freedom and the rule of law. The ALA decries--along with the practice of torture anywhere--the suggestion by the US government that under a `state of emergency' in this country, or in territories it occupies, torture is in any case an acceptable tool in pursuit of its goals; and
BE IT RESOLVED, That this resolution be widely publicized, including the press, the President of the United States, the Secretary of Defense, the Secretary of State, and members of the United States Congress.
Respectfully submitted by Mark C. Rosenzweig, ALA Councilor at large
second Al Kagan, SRRT Councilor
SUPPORTING DOCUMENTATION
The legal basis for this follows, including some explication of issues
raised by these references:
*Universal Declaration of Human Rights 1948, Article 5 states: "No one
shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment."
*Article 7 of the International Covenant on Civil and Political Rights
(ICCPR), ratified by 153 countries, including the U.S. in 1992
*Convention against Torture or Other Cruel, Inhuman or Degrading Treatment
or Punishment (the Convention against Torture), ratified by 136 countries,
including the U.S. in 1994.
*European Convention for the Protection of Human Rights and Fundamental
Freedoms African Charter on Human and Peoples' Rights.
*American Convention on Human Rights [Signed at the Inter-American
Specialized Conference on Human Rights, San JosÈ, Costa Rica, 22 November
1969].
*The 'Laws of War': the prohibition against torture is also fundamental to
international humanitarian law which governs the conduct of parties during
armed conflict.
Article 3 to the Geneva Conventions, for example, bans "violence of life
and person, in particular murder of all kinds, mutilation, cruel treatment
and torture" as well as "outrages upon personal dignity, in particular
humiliating and degrading treatment."
Article 31 of the Fourth Geneva Convention: "No physical or moral coercion
shall be exercised against protected persons, in particular to obtain
information from them or from third parties."
1999 Initial Report of the United States to the U.N. Committee against
Torture: in the United States, the use of torture "is categorically
denounced as a matter of policy and as a tool of state authority
No official of the government, federal, state or local, civilian or
military, is authorized to commit or to instruct anyone else to commit
torture. Nor may any official condone or tolerate torture in any form
Every act of torture [...]" is illegal under the [Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.
res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51
(1984)], entered into force June 26, 1987]. is illegal under existing
federal and state law, and any individual who commits such an act is
subject to penal sanctions as specified in criminal statutes."
*The US Constitution: Torture violates rights established by the Bill of
Rights.
The U.S. courts have located constitutional protections against
interrogations under torture in
a)the Fourth Amendment's right to be free of unreasonable search or
seizure (which encompasses the right not be abused by the police)
b)the Fifth Amendment's right against self-incrimination (which
encompasses the right to remain silent during interrogations),
c)the Fifth and the Fourteenth Amendments' guarantees of due process
(ensuring fundamental fairness in criminal justice system), and
d)the Eighth Amendment's right to be free of cruel or unusual punishment.
*In numerous cases, the U.S. Supreme Court has condemned the use of force
amounting to torture or other forms of ill treatment during interrogations,
including such practices as whipping, slapping, depriving a victim of food,
water, or sleep, keeping him naked or in a small cell for prolonged
periods, holding a gun to his head, or threatening him with mob violence.
*"Miranda v Arizona: The U.S. Supreme Court in 1966 also established a
rule requiring the police who seek to question detainees to inform them of
their "Miranda" rights to remain silent and to have an attorney present
during the questioning [Miranda v. Arizona, 384 U.S. 436 (1966)].
In explaining the need for this rule, the Court noted the continuing
police practice of using physical force to extract confessions, citing, as
an example, a case in which police beat, kicked and burned with lighted
cigarette butts a potential witness under interrogation.
*Torture would also violate state constitutions, whose provisions
generally parallel the protections set forth in the federal Bill of Rights.
Article 4 of the Convention against Torture obligates state parties to
ensure that all acts of torture are criminal offenses under domestic
legislation.
*The principal federal law that would apply to torture against detainees
is 18 U.S.C. 242, which makes it a criminal offense for any public official
to willfully to deprive a person of any right protected by the Constitution
or laws of the United States.
*Neither international nor domestic law conditions the right not to be
subjected to torture on citizenship or nationality. No detainee held by
U.S. authorities - regardless of nationality, regardless of whether held in
the U.S. or in another country, and regardless of whether the person is
deemed a combatant or civilian - may be tortured. All applicable
international law applies to U.S. officials operating abroad, including the
Convention against Torture and the Geneva Conventions.
Some explication relevant to the particular questions raised by the
government's consideration of the use of torture in its "War Against
Terrorism"
1)The prohibition against torture is universal and covers all countries
both regarding U.S. citizens and persons of other nationalities.
2)The Convention against Torture provides that any statement that has been
made as a result of torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture as evidence that
the statement was made.
3)Under customary international law as well as under international human
rights treaties, torture or other cruel, inhuman or degrading treatment is
prohibited at all times and in all circumstances. It is a non-derogable
right, one of those core rights that may never be suspended, even during
times of war, when national security is threatened, or during other public
emergencies.
4)According to the U.S. government, " U.S. law contains no provision
permitting otherwise prohibited acts of torture or other cruel, inhuman or
degrading treatment or punishment to be employed on grounds of exigent
circumstances (for example, during a "state of public emergency") or on
orders from a superior officer or public authority."
5)The European Court of Human Rights has applied the prohibition against
torture contained in European Convention on Human Rights in several cases
involving alleged terrorists. As it noted in one case, "The Court is well
aware of the immense difficulties faced by States in modern times in
protecting their communities from terrorist violence. However, even in
these circumstances, the Convention prohibits in absolute terms torture or
inhuman or degrading treatment or punishment, irrespective of the victim's
conduct." (Chahal v. United Kingdom, Nov. 15, 1996)
6)The Committee against Torture, reviewing Israel's use of torture as a
method of interrogation against suspected Palestinian terrorists, stated,
"The Committee acknowledges the terrible dilemma that Israel confronts in
dealing with terrorist threats to its security, but as a State party to the
Convention Israel is precluded from raising before this Committee
exceptional circumstances as justification for [prohibited] acts" [United
Nations Committee against Torture. "Concluding observations of the
Committee against Torture" (1997), A/52/44,paras.253-260. (15 Nov. 2001).]
Some people argue that the goal of saving innocent lives must override a
person's right not to be tortured. Although such an exception might appear
to be highly limited, experience shows that the exception readily becomes
the standard practice. For example, how imminent must the attack be to
trigger the exception and justify torture - an hour, a week, a year? How
certain must the government be that the detainee actually has the necessary
information?
The international community, however, rejected the use of torture even in
this type of case. International human rights law - as well as U.S. law -
do not contain any exceptions to the prohibition against torture.
Respectfully submitted,
Mark Rosenzweig
ALA Councilor at large
Page last modified October 15, 2004.
