University of Minnesota

Committee Against Torture, Consideration of US Periodic Report (day 2 of 2), Palais des Nations (Room XII) May 8, 2006.






Monday, 8 May 2006


Summary: this was the 2 nd of two days of hearings before the Committee Against Torture, to consider the periodic report of the US. The US delegation answered questions from the Committee from Friday and fielded additional questions asked by the Committee today. The meeting ran a little over the 2 hour timeslot provided. The US also indicated they would make available by the end of this day the extensive written materials they have referred to on Friday and today in answer to several of the questions. They also promised to follow up with information to the Committee on information they were not able to furnish today. These are unofficial notes, but please feel free to distribute them to anyone who may be interested.


3 p.m.




Note: There are more people today in the room than on Friday, about 200 people. Also 5 camera crews. Several press persons interviewed members of the Committee, the US delegation, and NGOs after the session was over.


Committee members present: I’ve since learned that there are only 9 members present at this session. Mr. Prado Vallejo of Ecuador had resigned shortly before the session and had not yet been replaced.


Ms. Essadia Belmir (Morocco)

Mr. Guibril Camara (Senegal)

Ms. Felice Gaer (United States)

Mr. Claudio Grossman (Chile)

Mr. Alexander Kovalev (Russian Federation)

Mr. Fernando Mariño Menendez (Spain)

Mr. Andreas Mavrommatis (Cyprus) (chairperson)

Mr. Julio Prado Vallejo (Ecuador) [resigned, VACANCY]

Ms. Nora Sveaass (Norway)

Mr. Xuexian Wang (China)




Mr. Mavromottis. Chairperson of the Committee.


Please take your seats. A request to the photographers to take the photos they want now. Then please sit. No moving around when the meeting is in session. I welcome back the delegation. I'm sure you had a good weekend working on your replies. I turn the floor over to you. Feel free to arrange with your team as to who will answer each question.




John Bellinger.


Thank you very much. We welcomed the dialogue that began on Friday. Both the tone of the discussions and the substance. I was pleased to meet each of the Committee members and the members of civil society. It's a little like a take home examination. We've worked hard on the questions you posed to us. We've worked hard to answer them all. Hopefully we will answer them all. But we look forward to a dialogue at the end.


On Friday the chairman began by saying more is expected of the US than from other countries. We recognize that most of the world does hold the US to a strict standard. Especially moral standards like eliminating torture. We approach this issue in this regard, knowing that we must always improve.


Many questions asked in this context, both on scope, foreign facilities. We are pleased to answer these questions. Will also highlight the US remedies. To be clear -- all US officials are prohibited from engaging in torture in all places, at all times. Also, cruel, inhuman, degrading punishment. This is the case even when the law of armed conflict applies. We note in this context Mr. Wang's question as to whether the US would agree to the statement that some people are not entitled to humane treatment. Our answer is a clear and simple no. All are entitled to humane treatment. June 2004 statement of the President -- the US reaffirms its commitment. The nonnegotiable demands of human dignity must be protected. We are committed to building a world where rule of law, and respect for human dignity prevails.


Our dialogue with this committee and other interested committees. You asked whether my government has an active dialogue with NGOs. Yes, we do. Secretary Rice and other senior officials meet with NGOs regularly. Indeed I met with 19 NGOs this weekend. We take these dialogues seriously. We benefit from these dialogues.


Most of the allegations about abuse on detained enemy combatants occurred several years ago. I say this not to minimize them, but to emphasize that our record has improved. We have more rigorous laws, systems and training in response. We will address several topics asked Friday thematically. Three themes. 1. legal issues about implementation of CAT. 2. treatment of detainees overseas, including accountability. 3. monitoring and oversight of alleged intelligence activities. We believe we will cover all questions. But if we miss something, apologize in advance and will try to answer whatever is raised.




Mr. Camara asked about the reservations we took to CAT when we ratified it in 1994. These reservations were taken 10 years ago. Nothing new. You asked particularly whether we feel we are subject to the Vienna Convention Law of Treaties when making our reservations. While US is not a party to Vienna Convention, the reservations conform to article 19. "A state may when ratifying... formulate a reservation, unless prohibited by the treaty or incompatible with object and purpose." The CAT does not prohibit reservations. More than 20 countries have made reservations. Consistent with customary law and the Vienna Convention, US made 2 reservations.


Mr. Camara particularly asked whether our reservations under article 16 were intended to negate international law. No, to the contrary. US reservation to article 16 was intended to state clearly the precise scope of the obligation it was assuming, given that the term cruel, inhuman, degrading treatment was not defined under the Convention.


When there is a difference of opinion between Committee and a state party, said Mr. Camara, the interpretation of the Committee must control. On this point we respectfully disagree. The US did not agree in its ratification to give the Committee this role. We give you great respect to your views, but you do not have the authority to issue legally binding interpretations.


On the question of why the US has not created the crime of torture under its laws. Before ratifying the CAT the US undertook exhaustive review of existing law. President said at time. Existing law is sufficient to implement the Convention, except torture committed outside US. Legislation then passed plugging this hole. As Mr. Mavromottis indicated on Friday, several other states have taken this approach to implementing the treaty.


On the issue of "extreme" we used it as a synonym for severe, but we did not use the term extremely severe.


On the severe mental pain and suffering in article 1, this recited elements implicit in the text, to meet the specificity necessary to meet the requirements of a criminal statute. There is no intent to limit or restrict the application of the CAT.


On the US understanding of [didn't get this, something about includes judicial acts]. We note that no state has objected to this interpretation.


Does the law of armed conflict apply throughout an engagement? Important question. Glad to answer it. The US is in a real war, not a rhetorical war, with al Qaeda. There's an important difference between the so-called global war against terrorism, and the specific conflict between US and al Qaeda. The US doesn't take the position that it is in a legal state of armed conflict with every terrorist group. Only with al Qaeda.


Our view is that US detention operations in Guantanamo, Afghanistan and Iraq, are part of ongoing armed conflicts, and are governed by law of armed conflict. This is the lex specialis. Regardless of this distinction, both legal doctrines prohibit torture -- CAT and law of armed conflict.


Mr. Marino also asked about the US statement that CAT was never intended to apply to armed conflicts. The US made its statement during the draft convention nearly 20 years ago. Confirmed its view in final convention text, included in Secretary General's report. I said there would be concern of overlapping activities, undermining prohibition against torture. We were not alone. Similar statements by Switzerland, Norway and Israel. We will provide written documentation of all of these statements.




John Bellinger


Now to our 2nd major thematic issue. Mr. Stimson from DOD will address this issue.


Mr. Stimson.


As stated on Friday, the Detainee Treatment Act of 2005 is a significant development in this area. The Act prohibits any treatment or interrogation technique not listed in the Army Field Manual. Those listed are the only techniques currently authorized.


With respect to question of Dr. Sveass, the DOD has revised several documents, including the Army Field Manual. Final consultations. We hope to publish them quite soon. We will supply the committee with copies when they are published.


On water boarding, two points. First, it is not listed in the current Army Field Manual. Therefore, it is not permitted. Second, it is specifically prohibited in the revised Army Field Manual. Not appropriate to discuss further specifics of the revised manual at this time.


I can also confirm that DOD has conducted investigations relating to detainee abuse. These investigations also reviewed conduct of chain of command. Of the hundreds or thousands who are or have been deployed in Iraq or Afghanistan, 800 investigations, icnluding 600 criminal investigations. No misconduct found in many of these. In others, misconduct discovered and action taken. More than 270 actions against more than 250 service members. In addressing these cases, the full range of administrative, disciplinary and judicial measures have been used as appropraite. Approximately 170 investigations remain open.


Mr. Marino noted an inconsistency between numbers from HRW and the Government. HRW reported 54 court martial, only 40 prison sentences, or small percentage of long sentences. Only 10 persons sentenced to 1 year or more. To be clear, those numbers are wrong. The facts are these: to date, there have been 103 courts martial, 89 convicted (86% conviction rate). 19 sentences of one year or more. More than 100 service members have received non judicial punishment, more than 60 reprimands. 28 involuntary separated from military service. And as stated, accountability is ongoing.


Mr. Marino's questions, as to supervisors. Emphatically yes.


Mr. Camara requested info on Martin Muganda, a British citizens receiving extensive terrorist training. Used to fight in Bosnia, and against US forces in Afghanistan in 2001. In March 2002, Mr. Muganda, arrested in Zambia, after fleeing Afghanistan. Based on those activities, he was detained as an enemy combatant. He alleged while at Guantanamo Bay, he was subjected to racial insults, and intimidated by guard. Investigation found no merit. He had engaged in aggressive behavior toward the guards. On June 22, 2003, he grabbed an interrogator's hand and put it in a pressure hold.


Ms. Belmir questioned whether inadequate training may have led to the abuses. Let me first say that when the shocking allegations of Abu Ghraib first surfaced, DOD initiated extensive investigations. Many changes. Training, operations, personnel, and leadership changes. Conclusions on detainee mistreatment -- abuse was result of wholly unauthorized and abhorrent misconduct by a few. We have decided, also compounded by leadership failures and poor advice. The dept conducts comprehensive training programs on treatment and interrogation of detainees. Of course no training program can prevent all incidents of abuse.


In response to Mr. Mavromattis' question, the US is carefully monitoring its detention operations to prevent any reoccurrence of an Abu Ghraib. We were shocked as were you. It should not have happened. We take this serious. We feel terrible about what happened to these Iraqi detainees. They were in our custody. We had obligation to treat them properly. We didn't do that and that was wrong.


One of the strengths of a great nation, is to recognize problems and doing something about them. Confronting problems in a transparent manner. Of course we wish all personnel had conducted themselves in a manner reflecting American values. But the reality is that some did not.


On the chairman's question about the need for more independent investigations, let me assure you that the 12 major investigations held were independent and impartial. Including wholly independent review headed by James Schlesinger. No investigators were limited in their work. They had full access to materials and individuals. The US Congress has also extensively reviewed these issues. Extensive hearings. More than 150 visits by Congressman to facilities. Should information come to light that an additional investigation is warranted, DOD will investigate fully.


With respect to Ms. Belmir's question about detention of juveniles. None at present in Guantanamo. At one time we had 3 juveniles at Guantanamo. They were returned in Jan 2004. With opportunity to reintegrate, with aid of NGOs. We are aware that one has returned to the fight. Conditions we provided them while in Guantanamo. After medical tests determined their ages, they were separated from the other detainees. Communal facility rather than cells. Underwent assessments from medical, behavioral and educational personnel. Taught them math, English, other subjects. Daily exercise. It is regrettable that al Qaeda uses juveniles in their fight.


3:35 p.m.




John Bellinger. One third general theme, relating to US intelligence activities. We will answer the questions together since they somewhat overlap. We appreciate the Committee's forbearance and understanding that we can not discuss intelligence details. But you asked for overall framework. Fair question. It is clear that all agencies must comply with all laws, including Detainee training Act.


All activities of CIA are subject to inspection, investigation, by the CIA's inspector and general, and by the intelligence committees of congress. The CIA continues to review and where appropriate revise its procedures, including training and legal guidance. To ensure compliance with all standards, including DTA and CAT. Several changes in last several years.




Mr. Bellinger.


We will now answer individual questions not in the above 3 themes.


On the question regarding whether what is or is not included in the definitions of torture and cruel, inhuman, degrading. As the example Mr. Kovalev gave, it is difficult to look at broad categories and label them all as torture in all cases. Drawing the line can be difficult in hypothetical examples too. Two examples, water boarding and incommunicado detention. From legal perspective depends on the context. On the issue of incommunicado detention. Fourth Geneva Convention though not directly relevant does indicate that incommunicado detention may be appropriate in certain cases.




Mr. Bellinger


Habeas corpus access and the judicial remedies in DTA. The Act provides unprecedented access, to enemy combatants captured during an armed conflict. Historically captured enemy combatants have not been able to seek court action during armed conflict. Under the DTA, review is possible. In imposing this uniform review procedure, the Act forecloses whatever limited habeas corpus may have applied. Instead the Act provides a standardized, uniform form of court redress. Unprecedented in armed conflict.




Mr. Bellinger


Common misunderstanding we've heard about the President's signing statement. No, the statement does not establish an exception to commit torture. Clear, emphatic. Under our legal tradition, Presidents often issue such signing statements. The President has no intention to violate the DTA under such provision.




Mr. Bellinger


As said earlier, we believe article 3 of the Convention does not apply as a matter of law to persons outside US territory. But to be clear, torture is abhorrent. We stand committed to eradication. Notwithstanding our legal position on article 3, the US' worldwide policy is not to transfer detainees to countries where torture is possible. Applies to all facilities, all persons, regardless of where they are detained.


Our legal views of article 3 do not prevent US from providing the article 3 protections to all persons, regardless of where detained. For example, migrants at sea, have a meaningful opportunity to seek review of their claim. This policy is described in great detail in the annexes to our periodic report. We've further strengthened these requirements.


On the standard, more likely than not, the inquiry is whether torture is probable. It's a standard familiar in US law, long applied in US courts. At least since implementation of Refugee Act. Approximately 2000 cases a year under that Act where the standard is applied.


Diplomatic assurances are a tool that may be used. But are not a substitute for a case specific assessment of likelihood of torture. They are one aspect. Taking into account all aspects, including assurances, would the person be tortured.


Mr. Marino also asked whether it would be prudent for international bodies to assess likelihood of torture in the hands of a third country. As we stated Friday, article 3 requires the US to make an individual assessment. Although a systematic practice of torture in a country would be highly relevant, it does not obviate a need to make a particular assessment. It is not appropriate to delegate this decision to a third party.




Mr. Bellinger


Who is the decision maker in an article 3 review? Mr. Marino is correct. It is the secretary of state or his administrator. Whenever allegations relating to torture are raised by a fugitive or other interested parties, appropriate departments within DOS with relevant regional and subject matter expertise, review the manner. The Bureau's D, HR & L plays an important role in these reviews.


Mr. Marino is right on the right of appeal. There is none. US courts are currently reviewing this matter.




Mr. Bellinger


On war crimes, we are strongly against them. We respect the right of other nations to join the ICC. Our position on it is clear. No need to repeat it here. We continue to lead the way in promoting accountabilty, by being the largest financial contributor to war crimes tribunals. We agree that these mechanisms are important.


3:50 p.m.




Mr. Monheim. Dept of Justice.


Regarding Dr. Sveass' questions about prison rape. We all agree elimination of prison rape is important objective. There has not been a delay in the implementation of the Act in the US. The Act specifically requirs the collection of statistic data, a survey, a commission, and a final report from the AG by June 2007. We are making steady process. We have to date initiated a massive survey of federal, state and local detention. Extensive questionnaires. $22 million in grants to states to reduce the problem. Convened Prison Rape Commission for hearings. Govt is working to fully implement the Act's requirements. To better detect, punish prison rape.


Rape in immigration facilities also important. DHS has jurisdiction over these facilities. Segregation of non violent from violent detainees. Widespread postings of how to report wrongful conduct. All officials, including private contractors, must meet DHS detainee standards. Rape Elimination training all provided to officers.


Detection and prevention of rape remains high priority, federal, state and local levels. Zero tolerance policy in federal prisons. Through investigations per CRIPPA.


On prosecution of law enforcement officers involved in sexual assaults, DOJ conducts investigations and prosecutes where appropriate. State and local officers, and prison officials, for deprivations of constitutional rights. Since Oct [didn't get this date], 44 defendants charged with sexual misconduct. 16 were prison officials. Most of the rest were police officers.


For example, former Jackson, MS police officer sentenced to 20 years for rape of a woman. Oklahoma Sheriff sentenced to 25 years for sexual assault against several women.



Mr. Monheim


Dr. Sveass also inquired about training of law enforcement personnel, to respect human dignity, especially gender issues. Some examples, FOP provides extensive training for those working with female inmates. Also use of force in searching female suspects. Immigration inspection process too. Also, wide variety of constitutional rights and civil rights training. Robust set of individual rights.




Mr. Monheim.


On Dr. Sveass' question about vulnerable persons. We share her concern. Numerous safeguards in place in US. Prisoners are generally classified and housed to assure inmate safety. Including gender, age, medical condition, affiliations, seriousness and nature of charge, criminal history, history of violence. Any violent inmate can be separated and if necessary transferred to another facility.


Federal law prohibits keeping juveniles in long-term custody with adults. Where done at all, short, temporary, with physical segregation.


Special management units available to provide for vulnerable inmates, such as victims of assault. Children may be housed with their adult family members. Unaccompanied juveniles are completely separated from adults.




Mr. Monheim


US continues to vigorously enforce CRIPPA. Since 2001, 42 investigations of jails, prisons, and juvenile facilities. 97 open investigations. Annually every immigration facility.


Remedies. Including damages, injunctive relief. Also given medical assistance, mental health intervention, crisis intervention.




Mr. Monheim.


On women giving birth in custody -- we reiterate it is not general policy to employ restraints on pregnant women or those in labor. Not prohibited. Restraints could be used if she represents a threat to her, her baby, or others around her.


Pending private litigation for Shawana Nelson in Arkansas. While federal government is not involved, we initiated an investigation of the facility to inquire about other such incidents. We currently have a consent agreement with the facility to continue to monitor abuse allegations.




Mr. Monheim


On whether domestic violence certain acts constitute torture, and requisite level of government involvement. Very fact specific. See our written response to question 59. See also our extensive written explanation in report to Human Rights Committee. Under US law, perpetrators of acts of domestic violence are subject to a wide range of prosecutions and sanctions.




Mr. Monheim


In Illinois, it is our understanding that state prosecutor has been appointed to investigate. Several convictions have been overturned. This demonstrates how the system works. To the full tenet of the law.




Mr. Monheim


On the so-called death row phenomenon, the Convention does not prohibit the death penalty. The Supreme Court has considered and held constitutional delays okay. Despite this, we are aware of the psychological toll that lengthy stays on death row pose. The delays are mostly because of the very remedies designed to protect. Access to other inmates creates some of this stress too. There are balance of interests to be considered.


4:09 p.m.




John Bellinger.


That concludes our responses to the questions posed on Friday. We've made every effort to respond to all questions. Hope we got them all. In closing I want to go back to where we began. Reiterate the US government's absolute commitment to comply with our obligation sunder CAT and to implement policies to provide protections that go beyond those requirements. I hope the serious effort we've made in this forum are a manifestation of that commitment. We hope you'll be able to take all of this in to account as you prepare your report and final recommendations. We look forward to hearing from you now, as well as your final report.


4:10 p.m.



Chair. The Committee thanks the delegation for their replies. We now have the penultimate phase of our process, which is more questions. Then quick replies. We start with Mr. Marino.




I'd like to thank the US delegation for their efforts. Their written responses, and the effort made over the weekend to answer more of our questions. Combating terrorism does raise difficult issues for all countries. The US is clearly one of the most affected by this. I have a few questions.


On the issue of armed conflict. You've affirmed that there is an armed conflict against al Qaeda but not other terrorist groups. You didn't say whether it was internal or international. Is there some other way to describe it? It leaves it a bit in a legal limbo as to how it fits in.


How long will this conflict last? Do you think it will last forever? Or is this question irrelevant? Does it depend on the circumstances?


On the Army Field Manual, do these also apply to intelligence agencies? Or do they have their own interrogation field manual?


Thirdly, this issue of disappeared persons and incommunicado detentions. Does this constitute an act of torture? In your written response you say it depends on the facts. Consequently there is some reticence to debate this in the abstract. It also difficult of course for me to submit specific cases. We aren't a fact-finding committee. Nonetheless I know of two cases of disappearance [didn't get names]. According to many courts a forced disappearance is torture. High probability that such persons are subject to torture and even death. If a person has been made to disappear. This is not a question of policy or politics. It is a question of law. [he talks some more about these cases, says he doesn't have all the facts, no real question seems to emerge from this]


On diplomatic assurances, if you find out later that a person has been tortured, do you continue to hand people over to that country? We had the Agisa case, being returned. US intervened. The person was tortured. That would be in violation of article 3. What does the US do in these cases? Masta Habib, taken from Guantanamo, sent to Egypt. Diplomatic assurances received, but not complied with. How does the US ensure compliance with these diplomatic assurances?


On a confession obtained under torture. Article 15 prohibits from use. The combatant status reviews in Guantanamo, which are secret. Do you investigate these investigations then?


I understand you are making a distinction between those tortured on your soil and on other soil. I understand the DTA makes this less relevant, but some disputes still seem to be arising.


4:21 p.m.




Thanks to the delegation for the considerable efforts in answering our questions. A few questions. I'll be brief. This doesn't mean of course that I agree with everything you've said. But the committee will withdraw and discuss these things and then say very honestly what we think. This is a dialogue and I hope we can continue it. We all want to move respect for human rights forward.


A question I don't think you've been asked yet. If torture is punished under US law, perhaps you can provide the Committee with specifics on penalties for acts of torture. That's all I have to say. Thanks again for your openness of spirit.


4:24 p.m.




I in turn welcome the great effort by the US delegation to answer the Committee's questions. However, I hope that they will be generous spirited enough to receive other questions from me, based on the replies to my first questions.


I'd like to begin with the notion of ensuring an effective jurisdiction. I have been comparing what is happening in the US and elsewhere. In both cases you have territories or spheres which come under the US influence. Beginning with chapt 1.42 chap 8 of US Crim Code, which puts the burden on the victim to show that the govt agent who committed torture with specific intent to do harm. So the burden of proof is on the victim. The legislation in force requires also that to obtain compensation or relief, must prove harm. Moral harm is not sufficient. People who are being tortured. 135 convicted under torture of John Burge. Allegedly subjected to acts of torture. Confessions. Convictions. But to date no effective access to courts.


Another example, 155 cases of use of tasers. Adults, children, school children, women, disabled, pregnant women, people in poor health. Doesn't seem warranted to use tasers. Isn't it time to adopt some form of regulation of these instruments. They have been subject to abuse. Health Dept involved. Cardiac patients, condition worsened. Nobody prosecuted or convicted. Several deaths.


On access to the courts for people detained abroad. Guantanamo. These people are not entitled to make use of the American courts. No habeas corpus. Geneva Conventions don't apply.


Also the case of journalists. Many were detained. Some died. Some were transferred to Guantanamo. Have heard nothing to date about their fate.


4:30 p.m.




Thank you to the delegation, especially for the answers to my questions. Some were very reassuring. I still have other questions however. These dialogues are important. Awareness to general public is increased too.


I noted an important change in your presentation today. The initial oral answers went at length to say that many of the questions raised were outside the Convention -- forced disappearances, foreign detainees, etc. Today you referred much more to the CAT and made that a more salient part of your presentation.


You also said that the acts required by CAT are included in your domestic legislation. I understand the McCain Amendment is an example of this. But I also understand it had a very difficult birth. Nonetheless it is in force now and hopefully will be allowed to become well established.


On the definition of torture, the question of intentionality. This would seem to require more clarification. Also, prevention versus prohibition of cruel, inhuman, degrading treatment.


There are ways of interrogating that seem to be permitted in your materials, that many in the community and this committee would consider torture. Would like your comments on this apparent discrepancy. Look forward to seeing reviewed Field Manual.


We haven't been asking for information about intelligence operations, but the rules and laws that apply to their activity.


I hope the new field manuals will also bind CIA agents, and private contractors.


My specific questions, what specific measures is the US taking to prevent torture and CID by CIA and other non-DOD authorities.


The issue of command responsibility -- would also like to hear more. Not stressed enough.


Training. [didn't get this]. Again, I thank you for your presentations on training.


We have examples of people who wanted to visit detainees and couldn't. What has been done about that?


A topic we haven't raised before is that of whistleblowers. Important to protect them, support them.


This leads me to the investigations done. You've clearly said you had 12 investigations. But there have been several comments on independence, and terms and reference. Not looking into policy matters or existing rules of procedure. Have you considered a special prosecutor, or an independent commission like the 9/11 commission.


Two other brief matters. I was impressed with the higher numbers of people who have been charged for torture. Are you developing a national database to track down these issues? The more you know about the national level, the more things can be done to rectify them.


You said 23 cases ongoing. Only 2 offered compensation so far -- it was monetary compensation. Have there been any other forms of compensation -- medical or social redress for example.


DTA prohibits allegations of ill treatment from being brought to a court, during and after their release. Is this true?


On the domestic issues, you didn't go into this issue of solitary imprisonment. We know that at least in one of the supermax prison permits only 5 hours a day.


High number of children in prison, including life sentence. What can be done?


The Prison Reform Act can bar inmates from bringing certain actions. Please comment.


I'm happy with your responses on sexual harassment. You seem to be doing lots of things to stop police and border police brutality.


One other thing -- Hurricane Katrina. What happened to people in prison, people hospitalized, and people in the community? Watching on TV in Norway, I was stunned. Just wanted to say that.


4:51 p.m.




Chair. To make it clear, if you don't have time to answer question, you can submit your answers afterward. This morning we had a letter from attorney at law. Acting on behalf of former president Saddam Hussein. Allegations that he was tortured while in custody. Secondly, he is threatened with death penalty after an unfair trial. We know he is being tried by an Iraqi court. They are states parties to the covenant too. We make this letter available to you.


I heard something on the news recently that prisoners being released in Guantanamo but not to their home country, but instead to Albania. Because of threats of torture. Would like to have some information on that.


On the definition of torture, we would be pleased if you could address this after the committee meeting. Point by point, how it is covered by the US legislation.


Some of your replies about rape in prison, abuse in prison, gave us general replies. But what about how effective these were? I know this is difficult, but it would be easier to understand by way of examples or statistics.


The Chicago case -- please keep us apprised of this. You said a judge appointed a prosecutor. Could you advise us of any progress in the future.


On the Detainee Act, we noted your explanation on an assessment, etc. I think it is a poor substitute for both habeas corpus. I think there is a provision in the DTA that these people can never sue for what happened to them in Guantanamo. If this is true, I don't think it is something that should be condoned.


Finally, you spoke about the tone of the discussion. I assure you we believe in a dialogue. A friendly dialogue. Despite everything else,


We don't have people coming for our next country report, at 5 p.m., so you have a little more time.


4:55 p.m.




John Bellinger


Thank you for your questions. Good questions. Tried to total them out. More than 30 questions. Given how long it took to assemble the answers to the 40 or more questions from Friday, we probably won't be able to do justice to them in the time remaining today.


I'll work my way through my notes, try to answer questions where I can give one briefly. In other cases, where statistics are not available at finger tips, or complicated question requiring a more careful answer, we'll have to get back to you. Forgive me in advance for not being able to get through all of them.




Mr. Bellinger


Starting with Mr. Marino's question on armed conflict. Yes, we think it is an international armed conflict in al Qaeda. When we went into Afghanistan, that was not just a criminal or police action. I know we can have discussion about every individual in Guantanamo. Every case may be different. But as a general matter, we think it is indisputable that we have an international armed conflict with al Qaeda. And it is continuing. Unfortunately Mr. Bin Ladin reminds us of that every day.




Mr. Bellinger


On the ICCPR, we will be coming back to talk to that Committee in 2 months. The long standing answer is that we do not view the Covenant as applying outside the US.




Mr. Bellinger


How long will the conflict with al Qaeda last? It's a difficult issue. But we do view the conflict as going on for a long time. Some don't like this. It leads to indefinite detention. This is why we've set up a framework for reviewing the status of every detainee. Unprecedented in the history of armed conflicts where one normally waits to the end. But it can not be said that because the conflict will last a long time we just release everyone.




Mr. Bellinger


Do our intelligence agencies have guidance. Yes, clear guidance. They also consult DOJ for advice. They have been reviewing their procedures since passage of the DTA in December. Will this be made public? Unfortunately no. That is the essence of intelligence agencies. I don't know any intelligence agencies make their procedures public. The important point is to emphasize that they comply with the law and take their responsibility seriously.




Mr. Bellinger


Is secret detention by definition torture? I think we could have a debate about that. The definition of torture in the CAT is clear. Is holding someone incommunicado the infliction of severe physical pain and suffering? I don't think so, no. Even Geneva Conventions indicate there are certain people who can be deemed to have forfeited their right to communication.


I don't think it can be said that persons without communication to the outside have higher probability of being tortured. But we understand the concerns you raise. The people held, wherever they are held, are subject to the same requirements of law, not to be subject to torture, or DCID.




Mr. Bellinger


Diplomatic assurances. Do we continue to hold someone over to a country where past transferee was tortured? Obviously highly relevant and would be taken into account.




Mr. Bellinger


May coerced statements be used in some proceedings? Article 15 is a binding CAT obligation. Applicable to all proceedings. In military context, there is a specific rule on this.




Mr. Bellinger


On territorial questions about CID, I appreciate the debate. The bottom line is the same for us. US officials are prohibited anywhere in the world, regardless under what doctrine, from committing torture, or CID. There are a number of areas of legal semantics like this. While preserving our legal position, something we think all states do, we want to leave no question about what we actually do.




Mr. Bellinger


Mr. Camara, you asked for statistics on penalties for acts of torture. I'll get back to you with some statistics as you offered.




Mr. Bellinger


Ms. Belmir, you had some specific questions about the US criminal statute, suggesting the burden is on the victim. The government prosecutes these crimes. The burden of proof is always on the government. Intent is always part of the government's burdens. The victim himself or herself is not needed.




Mr. Bellinger


On the Chicago cases, we'll have to get back to you. We've done as best as we can for now with the information we have.




Mr. Bellinger


On tasers, do we have something specifically? [looks at Mr. Monheim -- they discuss]. Go ahead, Mr. Monheim.


5:05 p.m.


Mr. Monheim.


Before going to tasers, I'd like to address the burden of proof. Comes from US Supreme Court case, Screws v. US, which requires specific intent to prosecute crime. In order to save the statute from being void for vagueness.


While some deaths have occurred from tasers, vast majority of their use have resulted in vast decrease in harm to suspects, officers and bystanders. Federal DOJ does not usually get involved in regulating state and local officials in matters such as this. We do step in an d prosecute where there has been a constitutional violation. Also we continue to research the medical and physical effects of their use.


5:08 p.m.




John Bellinger.


On the question of access of Guantanamo detainees to US courts. It is not accurate to say they don't have any access. As background, nowhere in history of armed conflict has a detainee been able to sue the other country for damages. But we recognize the war on al Qaeda is different. We don't think this turns into simply a vast criminal obligation. If that were true, the only thing US could do to Mr. Bin Ladin, is send an extradition request to the country concerned. It is a tricky area. But we are trying to navigate through the difficult issues in a fair manner.


They have extremely substantial access to our courts. Unprecedented. They have the right of habeas corpus to challenge their combatant review tribunal decision. Or bring an action in our article 3 courts. We think this is extremely substantial access, even though they are being held on international humanitarian law.




Mr. Bellinger


Ms. Belmir, I've not heard the claim that journalists are being held in Guantanamo. We'll take any information you have to the contrary and investigate.




Mr. Bellinger.


We'll make all of our additional responses, as well as the ones given on Friday, publicly available at the end of our session today. There was some difference of opinion about releasing it before this, but out of deference to the committee we decided not to make it publicly available until after this meeting.




Mr. Bellinger.


Dr. Sveass, you peppered us with your questions. I'll try to do my best.


On prohibited techniques, there may be prohibited techniques in Field Manual, but maybe not because they are torture. There may be other reasons.




Mr. Bellinger.


What techniques to be used by intelligence agencies? As said earlier, can't make specifics public, but can assure you they are compliant with law.




Mr. Bellinger.


On chain of command and training -- both very important points. One of the lessons of the reviews done, training is key to prevent reoccurrences.




Mr. Bellinger.


On visits -- there have been a large number of journalistic and expert visits. OCRC, Belgian Ministry. Reports coming out soon.




Mr. Bellinger.


Whistleblowers are very important. Legislation exists protecting them in the US.




Mr. Bellinger.


National database of actions. We've made alot of information available. Court martials, public prosecutions are matter of public record.




Mr. Bellinger.


On your statement that only 2 people received compensation, I'll have to get back to you on that. Civilians in armed conflict wouldn't normally have redress, but we'll look at the two cases you mention and get back to you.




Mr. Bellinger.


I respect the concern about the Katrina Disaster. Appreciated all the offers of international support that we got.




Mr. Bellinger.


Mr. Chairman, you gave us a letter from Saddam Hussein's lawyer. I think he's made those allegations before. I think the US government has previously denied those.




Mr. Bellinger.


On the release of detainees from Guantanamo. Five detainees were released and sent to Albania, who agreed to take them. More than 200 released since it opened. We have made it clear we don't want to be the jailers of the world. There are many very dangerous people at Guantanamo. We need help quite frankly in jailing them. You've probably heard the statistics that about 10% of those released have gone right back to joining to the fight. We appreciate it when other countries help us.


The President has said he doesn't wish to keep Guantanamo open forever. Those calling for closing it have not given us good suggestions about what to do with people trained in terrorist acts, bombs, etc. What to do with them? Some have said, try them in criminal courts. Sounds reasonable, but not that easy. Many are people who haven't committed any crimes technically. It's just that they've been trained as terrorists and seem to indicate they will continue to be terrorists if they are released. Our legal systems before 9/11 are clearly not suited well for this.




Mr. Bellinger.


How effective are our efforts to prosecute prison rape. We will come back to you with some statistics on this.




Mr. Bellinger.


That concludes my list. We will try to get back to you with the missing information, as quickly as we can. We know you will be finishing up your report later this week. On behalf of the federal agencies who are here, thank you.


5:22 p.m.


Chair. Thank you again. Our concluding recommendations will certainly be completed by the end of the session, if not the end of this week. We have many things on our agenda. my thanks to you and the NGOs who are returning. Safe journey.


We will suspend the meeting for a few minutes. We will see if there is anything further we can discuss regarding the topic this morning, re: methodology of our work.


5:23 p.m. meeting adjourned.


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