Second Periodic Report of the United States of America to the Committee Against Torture

Submitted by the United States of America to the Committee Against Torture, May 6, 2005

TABLE OF CONTENTS

Introduction
Information on New Measures and New Developments Relating to the Implementation of the Convention
Article 1
Article 2
Article 3
Article 4
Article 5
Articles 6 and 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Article 15
Article 16
Additional Information Requested by the Committee
Observations on the Committee’s Conclusions and Recommendations

Annexes

Annex 1

Part One – Individuals Under the Control of U.S. Armed Forces Captured During Operations Against the Taliban, Al Qaeda, and their Affiliates and Supporters

Part Two – Individuals Under the Control of U.S. Armed Forces in Iraq Captured During Military Operations

Annex 2 – President’s Statement on the United Nations International Day in Support of Victims of Torture

Annex 3 – December 30, 2004 Memorandum Opinion of the Acting Assistant Attorney General of the Office of Legal Counsel, United States Department of Justice, to the Deputy Attorney General on the Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A, December 30, 2004. (Also available at http://www.usdoj.gov/olc/dagmemo.pdf).

Annex 4 – U.S. Reservations, Understandings, and Declarations Upon Ratification

Annex 5 – Relevant Constitutional, Legislative, and Regulatory Provisions

Annex 6 – Sample of U.S. Federal Court Decisions Related to Article 3 of the Torture Convention.

Annex 7 – Capital Punishment

I. Introduction

1. The Government of the United States of America welcomes the opportunity to report to the Committee Against Torture on measures giving effect to its undertakings under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), pursuant to Article 19 thereof and on other information that may be helpful to the Committee. The organization of this Second Periodic report follows the General guidelines regarding the form and contents of periodic reports to be submitted by states parties (CAT/C/14/Rev.1).

2. This report was prepared by the U.S. Department of State (“Department of State”) with extensive assistance from the U.S. Department of Justice (“Department of Justice”), the U.S. Department of Homeland Security (“Department of Homeland Security”), the U.S. Department of Defense (“Department of Defense”) and other relevant departments and agencies of the United States Government. Except where otherwise noted, the report covers the situation for the period after October 1999 and prior to March 1, 2005.

The United States submitted its Initial Report to the Committee Against Torture in October 1999 (CAT/C/28/Add.5), hereafter referred to as “Initial Report”. It made its oral presentation of that report to the Committee on May 10-15, 2000. Accordingly, the purpose of this Second Periodic Report is to provide an update of relevant information arising since the submission of the Initial Report.

Since the Initial Report, with the attacks against the United States of September 11, 2001, global terrorism has fundamentally altered our world. In fighting terrorism, the U.S. remains committed to respecting the rule of law, including the U.S. Constitution, federal statutes, and international treaty obligations, including the Torture Convention.

The President of the United States has made clear that the United States stands against and will not tolerate torture under any circumstances. On the United Nations International Day in Support of Victims of Torture, June 26, 2004, the President confirmed the continued importance of these protections and of U.S. obligations under the Torture Convention, stating:

…[T]he United States reaffirms its commitment to the worldwide elimination of torture . . . . To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction….

These times of increasing terror challenge the world. Terror organizations challenge our comfort and our principles. The United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere. See Annex 2.

3. 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 for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.

4. All components of the United States 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. The U.S. Government does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.

5. The legal and policy framework through which the United States gives effect to its Convention undertakings has not changed fundamentally since the Initial Report. Unless otherwise noted, the scope of the relevant protections afforded by the United States Constitution and comparable state constitutions, as well as the statutory and regulatory provisions governing the criminal justice system, detention conditions, and the relevant immigration laws and policies continue to apply. Furthermore, the U.S. federal court cases that have referenced the Torture Convention in some way since October, 1999, numbering well over 1000, illustrate the real impact of U.S. Convention undertakings on the U.S. legal system.

6. By letter of May 21, 2004, the Committee requested “updated information concerning the situation in places of detention in Iraq, up to the time of the submission of the report.” In Annex 1, Part Two the United States provides a discussion and related materials relevant to its detention of individuals under the control of U.S. Armed Forces in Iraq captured during military operations. The United States provides similar information in Annex 1, Part One, with respect to detentions of individuals under the control of U.S. Armed Forces in Afghanistan and Guantanamo Bay, Cuba.

7. The United States is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States, as noted above, has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted. These issues are addressed in detail in this report and its annexes with a view to conveying the seriousness of the commitment of the United States on these issues.

II. Information on New Measures and New Developments Relating to the Implementation of the Convention

Article 1 (Definition)

8. The definition of torture accepted by the United States upon ratification of the Convention and reflected in the understanding issued in its instrument of ratification remains unchanged. The definition of torture is codified in U.S. law in several contexts.

9. As explained in the Initial Report, this definition is codified at Chapter 113B of Title 18 of the United States Code, which provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if (1) the alleged offender is a national of the United States or (2) if the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender. See 18 U.S.C. §§ 2340 and 2340A, as amended (the extraterritorial criminal torture statute), which is set forth in Annex 5. On October 26, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. 107-56, Title VIII, § 811(g), amended § 2340A to add an explicit conspiracy provision with strengthened penalties to the substantive offense described in the extraterritorial criminal statute. This prohibition on torture and conspiracy to torture extends, inter alia, to U.S. employees and U.S. contractors of the United States anywhere in the world outside of the United States, provided that the conduct falls within the enumerated elements of the statute. At the time of the enactment of 18 U.S.C. §§ 2340, 2340A, 18 U.S.C. § 2 already punished those who aid, abet, counsel, command, induce, procure or cause the commission of an offense against the United States.

10. On December 30, 2004 the Department of Justice’s Office of Legal Counsel (OLC), which provides legal advice to the Executive Branch, published a memorandum that addresses the legal standards applicable under the extraterritorial criminal torture statute. This memorandum is available at Annex 3 and at http://www.usdoj.gov/olc/dagmemo.pdf. Under the language Congress adopted in enacting the statute, in order to constitute “torture” under § 2340 –2340A, the conduct in question must have been “specifically intended to inflict severe physical or mental pain or suffering.” The December 30, 2004 memorandum separately considers each of the principal components of that key phrase: (1) the meaning of “severe”; (2) the meaning of “severe physical pain or suffering”; (3) the meaning of “severe mental pain or suffering”; and (4) the meaning of “specifically intended.” The memorandum supersedes an earlier memorandum of that same office in August 2002 on the same statute, discussing the definition of torture and the possible defenses to torture under U.S. law. The Department of Justice had previously withdrawn the August 2002 memorandum.

11. Torture is also defined in the immigration and extradition regulations that implement U.S. obligations under Article 3, as discussed below. See 8 Code of Federal Regulations (C.F.R.) § 208.18(a) and 22 C.F.R. § 95.1(b).

12. The term “torture” is also defined in the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, note, which, as discussed in greater detail in paragraph 82 below, permits victims of torture and extrajudicial killings to claim damages for such abuses.

Article 2 (Prohibition)

13. As indicated in the Initial Report, in the U.S. legal system, acts of torture are prohibited by law and contrary to U.S. policy, subject to prompt and impartial investigations, and punished by appropriate sanction. As noted above, the core legal framework through which the United States gives effect to its Convention undertakings to prevent acts of torture has not changed fundamentally since the Initial Report. As explained in the Initial Report, it is clear that any act of torture falling within the Torture Convention definition would in fact be criminally prosecutable in every jurisdiction within the United States. Such acts may be prosecuted, for example, as assault, battery or 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, an act of racketeering, or a criminal violation of an individual’s civil rights.

14. Since the Initial Report, the jurisdiction to prosecute torture as well as other serious abuses short of torture that are committed outside the United States has been expanded. The extraterritorial jurisdiction to prosecute torture and other serious abuses is discussed in greater detail under Article 5.

15. Throughout this report, we refer to numerous specific actions that the United States is taking to combat various forms of serious abuse. Although the examples cited throughout the report do not necessarily involve acts of torture as defined under Article 1 of the Convention, as ratified by the United States, or cruel, inhuman or degrading treatment or punishment as defined under Article 16 of the Convention, as ratified by the United States, they are included to illustrate the commitment of the United States, or as the case may be, the sub-Federal level authorities in the United States, to prevent and prosecute serious abuses, whether or not they fall within these definitions of torture or cruel, inhuman or degrading treatment or punishment.

16. The United States is fully aware of allegations that U.S. military or intelligence personnel have subjected detainees in various locations to torture. Allegations with respect to the military are discussed in more detail in Annex 1. The numerous statements by Executive Branch officials condemning the use of torture, made in response to allegations of abuse arising out of detentions in Afghanistan, Guantanamo Bay and Iraq, have emphasized that torture is prohibited as a matter of U.S. law. When allegations of abuses arise, they in all cases will be investigated and, if substantiated, prosecuted. As described in the Initial Report, the Congress of the United States has authorized a separate system of military justice for members of the United States armed forces. Members of the armed forces are subject to the Uniform Code of Military Justice, which, among other things, includes a specific offense of cruelty or maltreatment. See Annex 1. Annex 1 provides a description of the investigations into abuse allegations arising out of detentions of individuals under the control of U.S. Armed Forces in Afghanistan, Iraq and Guantanamo Bay, Cuba and actions to hold personnel of the U.S. armed forces accountable under the military justice system when they have been found to have committed unlawful acts. See Annex 1. Allegations regarding intelligence activities are currently under review by the Inspector General of the Central Intelligence Agency (CIA). That office has reported and will continue to report its findings to the Director of the Central Intelligence Agency and the Congressional Intelligence Oversight Committees and will continue to forward substantiated cases of abuse for investigation and prosecution to the Department of Justice.

17. Federal criminal prosecutions of complaints about abuse. Since the Initial Report, complaints about abuse including physical injury by individual law enforcement officers continue to be made and are investigated, and if the facts so warrant, officers are prosecuted by federal and state authorities. As described in the Initial Report, the Criminal Section of the Department of Justice's Civil Rights Division is charged with reviewing such complaints made to the Federal Government and ensuring the vigorous enforcement of the federal statutes that make torture, or any willful use of excessive force, illegal. The Department of Justice is committed to investigating all incidents of willful use of excessive force by law enforcement officers and to prosecuting federal law violations should action by the local and state authorities fail to vindicate the federal interest. Between October 1, 1999 and January 1, 2005, 284 officers were convicted of violating federal civil rights statutes. Most of these law enforcement officers were charged with using excessive force.

18. Below are some significant examples of recent federal law enforcement prosecutions that occurred between October 1, 1999 and January 1, 2005.

* On September 7, 2004, a Texas police officer was convicted on federal civil rights charges under 18 U.S.C. § 242 for repeatedly assaulting a handcuffed man while the officer was acting under color of law during an arrest, and then attempting to cover up his actions. The police officer first kicked and choked the man, who was handcuffed to the side of a police car, then proceeded to stick his gun barrel into the victim’s mouth, threatening to kill him. As of January 1, 2005, the defendant had not yet been sentenced.

* On July 14, 2004, an Oklahoma police officer was convicted and awaits sentencing for assaulting and fracturing the hip of a 67-year-old man he stopped for a traffic violation. The officer was prosecuted under 18 U.S.C. § 242 for the willful unreasonable seizure of the victim under the color of law.

* On May 19, 2004, a Louisiana detention officer was convicted and is awaiting sentencing for repeatedly throwing a handcuffed detainee against a wall resulting in significant lacerations to his face. The officer was prosecuted under 18 U.S.C. § 242 for the willful deprivation of the victim’s liberty without due process under color of law.

* On March 25, 2004, the United States Court of Appeals for the Eleventh Circuit affirmed the conviction and sentence of a former deputy sheriff with the Jacksonville, Florida Sheriff’s Department, who was charged and convicted for kidnapping, murdering, and stealing money from motorists, bank customers, and drug dealers whom he falsely arrested in 1998 and 1999. The deputy sheriff was sentenced to life in prison for, among other charges, the violation of 18 U.S.C. § 241 for conspiracy to deprive one of the victims of life and the others of liberty and property without due process under color of law.

* On September 24, 2003, a North Carolina police officer pleaded guilty to a felony civil rights charge for coercing women, whom he stopped or arrested, into having sex with him. He was sentenced to ten years in prison for willful deprivation of liberty without due process under color of law.

* On January 29, 2002, a North Carolina chief of police was convicted of using excessive force in seven separate incidents, involving six separate arrestees. The defendant was sentenced to 37 months in prison for willfully conducting unreasonable seizures under color of law in violations of 18 U.S.C. § 242.

* On May 27, 2001, the last of five male orderlies at a state-run care facility for developmentally disabled adults near Memphis, Tennessee was convicted for routinely beating residents. One of these beatings resulted in the death of a developmentally disabled patient who could not cry out for help because he was mute. The orderlies received sentences ranging from 60 to 180 months in prison under 18 U.S.C. § 242 for willful deprivation of the victim’s liberty without due process under color of law.

* On February 7, 2001, six correctional officers with the Arkansas Department of Corrections beat and repeatedly shocked two naked and handcuffed victims with a hand-held stun gun and cattle prod. During a separate incident, three of the six defendants shocked and beat another handcuffed inmate. Ultimately, five officers entered guilty pleas while the sixth was convicted at trial. They were sentenced to terms of incarceration ranging from 24 to 78 months under 18 U.S.C. § 242 for imposing cruel and unusual punishment under color of law. Between March 3, 2001 and August 21, 2001, another three correctional officers with the Arkansas Department of Corrections pled guilty to assaulting an inmate while his hands were handcuffed behind his back. They were later sentenced to terms of incarceration ranging from 8 to 18 months in prison under 18 U.S.C. § 242 for imposing cruel and unusual punishment under color of law.

* On January 23, 2001, a Florida Department of Corrections officer with the Metro Dade Jail was convicted of assaulting a female inmate resulting in multiple contusions to her face, back, and neck. He was sentenced to 17 months in prison under 18 U.S.C. § 242 for imposing cruel and unusual punishment under color of law.

* On November 9, 2000, a correctional officer captain from a state of Florida jail pled guilty to having forcible sexual contact with a female inmate and was thereafter sentenced to 15 months in prison. He was prosecuted under 18 U.S.C. § 242 for willful deprivation of the victim’s liberty without due process under color of law.

* On November 2, 2000, seven federal correctional officers from the U.S. Penitentiary in Florence, Colorado, were indicted for systematically beating inmates and making false statements to cover-up their illegal conduct. On June 24, 2003, the jury convicted the three ringleaders on conspiracy and substantive counts. They were sentenced to 30 and 41 months in prison for, among other charges, the violation of 18 U.S.C. § 241 for conspiring to impose cruel and unusual punishment under color of law.

* On March 23, 2000, a U.S. Bureau of Prisons correctional officer in Oklahoma City was convicted of engaging in various degrees of sexual misconduct with five female inmates. As a result, he was sentenced to 146 months in prison under 18 U.S.C. § 242 for imposing cruel and unusual punishment under color of law.

* On February 15, 2000, a Mississippi chief of police was convicted of striking an arrestee several times in the head with a baton while the victim was handcuffed in the back of a patrol car. He was sentenced to 13 months in prison under 18 U.S.C. § 242 for a willful unreasonable seizure under color of law.

* On December 13, 1999, New York City Police Officer, Justin Volpe, was sentenced to thirty years in prison under 18 U.S.C. § 242, for brutally sodomizing Abner Louima in a New York City police station, while acting under the color of law. Five other officers were convicted of obstructing justice during the investigation of the assault of Louima and a second arrestee and three of the officers were incarcerated for sentences ranging from three to five years. The convictions of two of these officers were, however, reversed by the United States Court of Appeals for the Second Circuit, which found their conduct did not violate federal obstruction of justice law.

19. Criminal prosecutions of complaints of abuse at the state and local level. Additionally, prosecutions of abuse at the state and local level continue, some examples of which are cited below.

* In July 2004, a District of Columbia police officer was found guilty by a D.C. Superior Court jury of simple assault after shoving the barrel of his gun into the cheek of a man, following a confrontation at a gas station.

* On April 1, 2004, three Miami, Florida police officers were convicted on conspiracy charges after they took part in a scheme to plant guns near the bodies of two fleeing robbers shot to death by police. Sentences ranged from five to ten years.

* In 2002, a New York City, New York police officer was convicted of sodomy and reckless endangerment after forcing a 16-year old prostitute to engage in oral sex. The officer was sentenced to 7 years in prison.

* On November 1, 2000 the Appellate Court of Illinois upheld the decision by a municipal police board to dismiss a Chicago police officer for striking a detained suspect in the head and mouth.

20. Federal criminal prosecutions of violations of procedural rights. Complaints about failures to accord due process or “procedural rights” by individual law enforcement officers continue to be made to federal and state authorities. As described in the Initial Report, the Criminal Section of the Department of Justice's Civil Rights Division is charged with reviewing such complaints made to the Federal Government and ensuring the vigorous enforcement of the applicable federal criminal civil rights statutes. The Department of Justice is committed to investigating all allegations of willful violations of constitutional rights and to prosecute federal law violations should action by the local and state authorities fail to vindicate the federal interest. For example, as of January 1, 2005, the Civil Rights Division is conducting two separate ongoing investigations in two different states involving allegations that local police officers used threats of force to coerce information or a confession from an arrestee.

21. Civil Pattern or Practice Enforcement. As discussed in the Initial Report, the Department of Justice’s Civil Rights Division may institute civil actions for equitable and declaratory relief pursuant to the Pattern or Practice of Police Misconduct provision of the Crime Bill of 1994, 42 U.S.C. § 14141 (Section 14141), which prohibits law enforcement agencies from engaging in a pattern or practice of violating people’s civil rights. Since October 1999, the Civil Rights Division has negotiated 16 settlements with law enforcement agencies. These settlements include two consent decrees regarding the Detroit, Michigan Police Department, and consent decrees covering Prince George’s County, Maryland and Los Angeles, California police departments. Other recent settlements include those entered into with police departments in the District of Columbia; Cincinnati, Ohio; Buffalo, New York; Villa Rica, Georgia; and Cleveland, Ohio. As of January 1, 2005, there are currently 13 ongoing investigations of law enforcement agencies.

22. The resolution of the Division’s investigation of the Detroit Michigan Police Department illustrates the impact of the Division’s law enforcement misconduct program. On June 12, 2003, the Division filed a complaint alleging a pattern or practice of conduct by Detroit officers subjecting individuals to uses of excessive force, false arrests, illegal detentions and unconstitutional conditions of confinement. On the same date, the Division and the City of Detroit filed two proposed consent decrees and a Joint Motion to Appoint a Monitor. The consent decrees require reform in the following areas: use of force, arrest and witness detention practices, and holding cell conditions. Both consent decrees enhance the Police Department’s policies, as well as require the supervision, accountability, and training necessary to implement and sustain the policies.

23. CRIPA. The Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq., which permits the Attorney General to bring civil lawsuits against state institutions regarding the civil rights of their residents, including the conditions of their confinement and use of excessive force, is another statute pursuant to which the Department of Justice’s Civil Rights Division continues to prevent unlawful use of force. By August 2004, the Civil Rights Division had initiated CRIPA actions regarding approximately 400 facilities, resulting in approximately 120 consent decrees and settlements governing conditions in about 240 facilities, since CRIPA was enacted in 1980. CRIPA enforcement has been a major priority of the Division. Since October 1999, the Division has opened 52 new investigations covering 66 facilities. The Division has also entered into 39 settlement agreements including seven consent decrees. As of January 1, 2005, there are currently 59 active investigations covering 69 facilities.

24. Federal enforcement actions addressing prison conditions. As stated above, the Civil Rights Division investigates conditions in state prisons and local jail facilities pursuant to CRIPA, and investigates conditions in state and local juvenile detention facilities pursuant to either CRIPA or Section 14141. These statutes allow the Department of Justice to bring legal actions for declaratory or equitable relief for a pattern or practice of unconstitutional conditions of confinement. Some examples of these investigations follow.

* On July 16, 2004, the Civil Rights Division reached an out-of-court agreement with the Wicomico County Detention Center in Salisbury, Maryland regarding systematic violations of prisoners’ federally protected civil rights. The Division’s three-year investigation revealed evidence that the Detention Center failed to provide required medical and mental health care, failed to provide adequate inmate safety, and failed to provide sufficiently sanitary living conditions. Under the terms of the agreement, the Detention Center will address and correct the deficiencies identified by the Division.

* On June 7, 2004, the Civil Rights Division filed a lawsuit challenging the conditions of confinement at the Terrell County Jail in Dawson, Georgia. The Division’s complaint alleges that the jail routinely violates federally protected rights, including failing to protect inmate safety, and failing to provide required medical and mental health care.

25. The Division has also recently issued letters reporting its findings regarding conditions at the McPherson and Grimes Correctional Units in Newport, Arkansas, the Garfield County Jail and County Work Center in Enid, Oklahoma, the Patrick County Jail in Virginia, and the Santa Fe Adult Detention Center in New Mexico.

26. Litigation of prison conditions in state courts. Additionally, inmates have been successful in challenging prison conditions in state courts as violations of state and federal law. Some examples follow.

* On April 29, 2003, the Supreme Court of Montana held that the Montana State Prison system violated the Montana Constitutional rights of inmates housed in filthy, uninhabitable prison cells. Inmates were forced to inhabit cells that contained blood, feces, vomit and other types of debris. The Montana Supreme Court held that such living conditions were an “affront to the inviolable right of human dignity.” Walker v. State, 68 P.3d 872, 885 (Mont. 2003).

* On October 5, 2000, the Supreme Court of Arkansas found that the established constitutional right against cruel and unusual punishment included a prison inmate’s right to be reasonably protected from attacks by other prisoners. Boyd v. Norris, No. 00-536, 2000 Ark. LEXIS 458, at *2 (Ark. Oct. 5, 2000)

Article 3 (Non-refoulement)

27. The United States continues to recognize its obligation not to “expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured. The United States does not transfer persons to countries where the United States believes it is “more likely than not” that they will be tortured. This policy applies to all components of the United States government. The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred. If assurances were not considered sufficient when balanced against treatment concerns, the United States would not transfer the person to the control of that government unless the concerns were satisfactorily resolved. The procedures for evaluating torture concerns in the immigration removal and extradition context are described in greater detail below.

28. Creation of the Department of Homeland Security (DHS). Since the United States submitted the Initial Report and subsequent to the terrorist attacks of September 11, 2001, the United States Government restructured several agencies within the Executive Branch, creating the U.S. Department of Homeland Security (DHS). See Homeland Security Act of 2002, Public Law 107–296, 116 Stat. 2310. As part of this restructuring, the Immigration and Naturalization Service (INS) was abolished and its functions were transferred from the U.S. Department of Justice to the new DHS. Pursuant to the Homeland Security Act, all authorities exercised by the Commissioner of the INS, on behalf of the Attorney General, were transferred to the Secretary of Homeland Security. The Executive Office for Immigration Review (EOIR), whose immigration judges preside over removal proceedings and adjudicate Torture Convention claims, remain within the Department of Justice. Immigration removal proceedings, and the adjudication of Torture Convention claims within those proceedings, remain unchanged since the Initial Report, but the functions described in that report as implemented by INS are now performed by DHS.

29. Observance of Article 3 obligations in the immigration removal context. As discussed in the Initial Report, regulations implementing Article 3 of the Torture Convention permit aliens to raise Article 3 claims during the course of immigration removal proceedings. These regulations fully implement U.S. obligations under Article 3 and set forth a fair and rule-bound process for considering claims for protection. Individuals routinely assert Article 3 claims before immigration judges within the EOIR, whose decisions are subject to review by the Board of Immigration Appeals, and ultimately, to review in U.S. federal courts. 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 INA § 235(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.” See 8 C.F.R. 235.8(b)(4).

30. Article 3 protection is a more limited form of protection than that afforded to aliens granted asylum under the Immigration and Nationality Act (INA). This more limited form of protection is similar to withholding of removal, see INA§ 241(b)(3), through which the United States implements its non-refoulement obligations under the Refugee Protocol. An alien granted protection under the Torture Convention may be removed to a third country where there are no substantial grounds for believing that the alien will be subjected to torture. Furthermore, the regulations contain special streamlined provisions for terminating Article 3 protection for an alien who is subject to criminal and security-related bars, when substantial grounds for believing the alien would be tortured if removed to a particular country no longer exist. Finally, in a very small number of appropriate cases, pursuant to 8 C.F.R. § 208.18(c), the U.S. may consider diplomatic assurances from the country of proposed removal that the alien will not be tortured if removed there. In such removal cases, the Secretary of Homeland Security (and in cases arising prior to the enactment of the Homeland Security Act, the Attorney General), in consultation with the Department of State, would carefully assess such assurances to determine whether they are sufficiently reliable so as to allow the individual’s removal consistent with Article 3 of the Torture Convention. The United States reserves the use of diplomatic assurances for a very small number of cases where it believes it can reasonably rely on such assurances that the individuals would not be tortured. Since the Initial Report, the United States has removed several individuals to their countries based on assurances that they would not be tortured. However, as is the case in the extradition context, the United States credits assurances and removes or extradites individuals only when it determines that it can remove or extradite a person consistent with its obligations under Article 3.

31. In practice, the record demonstrates that individuals seeking protection under Article 3 of the Torture Convention have asserted torture claims and in many cases have obtained protection under the regulations implementing the Convention. In the period from 1999, when the regulations implementing Article 3 of the Convention went into effect, through 2003, the available data indicates the following statistics regarding grants of protection by immigration judges based on the Torture Convention:

32. However, these statistics do not convey the full extent to which U.S. law affords protection against return to individuals who “more likely than not” will be tortured upon their return. In light of the similarities between the harm feared by asylum and torture applicants, the same application form is used to request both forms of protection and most individuals who assert torture claims simultaneously assert asylum claims. In such cases, if an individual is eligible for asylum, the immigration judge may grant asylum and thus not reach the torture claim. Accordingly, the statistics on grants of torture protection cited above may reflect cases where individuals were deemed ineligible for a grant of asylum by virtue of the bars to such relief (e.g., individuals who committed serious crimes) under U.S. law and U.S. obligations under the 1967 Protocol relating to the Status of Refugees or because they failed to demonstrate that the persecution feared would be “on account” of one of the protected grounds specified in the definition of “refugee” set forth at § 101(a)(42) of the Immigration and Nationality Act. Therefore, for a more complete understanding of the extent to which protection against return is afforded to aliens, it is relevant to note the following available statistics on grants of asylum and withholding of removal:

33. As the United States implements Article 3, the contours of elements unique to Torture Convention claims, such as the meaning of "torture" and government "acquiescence," are taking shape in the United States through the development of interpretive case law. Since the Initial Report, there have been a number of precedent-setting decisions relating to Article 3 protection under the Torture Convention issued by the EOIR and by various federal district and circuit courts throughout the United States. Precedent administrative decisions by EOIR are available at http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html, and include:

* Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (Applicant for Torture Convention protection must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity; therefore, protection does not extend to persons who fear private entities that a government is unable to control.)

* Matter of G-A-, 23 I&N Dec. 366 (BIA 2002) (An Iranian Christian of Armenian descent demonstrated eligibility for Torture Convention protection by establishing that it is more likely than not that he will be tortured if deported to Iran based on a combination of factors, including his religion, his ethnicity, the duration of his residence in the United States, and his drug-related convictions in this country. The evidence of record demonstrated that Armenian Christians were subject to harsh and discriminatory treatment in Iran, that persons associated with narcotics trafficking, like G-A, faced particularly severe punishment, and that Iranians who had spent an extensive amount of time in the United States were perceived to be opponents of the Iranian Government or even pro-American spies. The combination of these traits, and the evidence of widespread use of torture in Iran, demonstrated that the respondent was likely to be subjected to torture if deported to Iran.)

* Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) (For an act to constitute "torture" it must satisfy each of the following five elements in the definition of torture set forth at 8 C.F.R. § 208.18(a): (1) the act must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions. Neither the indefinite detention of criminal deportees by Haitian authorities nor the substandard prison conditions in Haiti constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally detain deportees or create and maintain conditions in order to inflict torture. Isolated instances of mistreatment that may rise to the level of torture as defined in the Torture Convention are insufficient to establish that it is more likely than not that the respondent will be tortured if returned to Haiti.)

34. Relevant decisions by federal courts on Article 3 claims are issued daily and are too numerous to list in this report. Generally, precedent decisions are publicly available on the Internet. Attached in Annex 6 is a sampling of federal court decisions on Article 3 claims.

35. The United States remains committed to providing Article 3 protection to all aliens in its territory who require such protection, and recognizes that there are no categories of aliens who are excluded from protection under Article 3. As such, some aliens who are subject to criminal- or security-related grounds and are thus ineligible for other immigration benefits or protection may be eligible for protection under Article 3. As described in paragraph 171 of the Initial Report, the United States provides a more limited form of protection – “deferral of removal” – to aliens otherwise subject to exclusion grounds. At the time the Initial Report was submitted, implementing regulations authorized continued detention of aliens granted deferral of removal. In 2001, the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), discussed also in paragraph 132, that existing statutory authority under INA § 241(a)(6) to detain aliens with final orders of removal is generally limited to such detention as necessary to achieve removal in the reasonably foreseeable future. While the Zadvydas decision limits the authority of the Department of Homeland Security to detain certain aliens granted deferral of removal, DHS remains committed to ensuring the proper balance between United States obligations under the Torture Convention and DHS’s mission to improve the security of the United States.

36. Observance of Article 3 obligations in the extradition context. As described in the Initial Report, in U.S. practice, an extradition judge’s decision whether to certify extraditability is not dependent upon consideration of any humanitarian claims, including claims under the Torture Convention. After the Secretary of State receives a certification of extraditability from a magistrate or judge, the Secretary of State must determine whether a fugitive who has been found extraditable should actually be extradited to a requesting State. In determining whether a fugitive should be extradited, the Secretary of State is authorized to consider de novo any and all issues properly raised before the extradition court, as well as any other considerations for or against surrender, including whether it is more likely than not that the fugitive would face torture in the requesting State.

37. Pursuant to Department of State regulations set forth in the Initial Report, whenever allegations relating to torture are raised by the fugitive or other interested parties, appropriate policy and legal offices within the Department of State review and analyze information relevant to a particular case. Information provided by the relevant regional bureau, country desk, or U.S. embassy also plays an important role in the evaluation of torture claims. Based on the analysis of relevant information, the Secretary of State may decide to surrender the fugitive to the requesting State, deny surrender of the fugitive, or condition the extradition on the requesting State’s provision of assurances, deemed to be credible by the Secretary of State, related to torture or aspects of the requesting State’s criminal justice system that protect against mistreatment, such as regular access to counsel. Whether such assurances are sought is determined on a case-by-case basis, fully bearing in mind U.S. obligations under Article 3 of the Torture Convention.

38. The Secretary of State will evaluate claims for protection under Article 3 of the Torture Convention after judicial extradition proceedings have been completed. This position is based on the longstanding “rule of non-inquiry,” which leaves to the consideration of the Secretary of State questions regarding the treatment extraditees may receive following their surrender for extradition. In U.S. practice, the Secretary of State is uniquely well-suited to determine the risks that a fugitive would be subject to torture upon his return to a requesting state. In appropriate cases, it may be necessary for the Secretary of State to decide against surrender or to obtain assurances as necessary from the foreign government to persuade the Secretary of State that the United States would be acting in compliance with Article 3 of the Convention.

39. The issue of whether federal courts in the United States can consider an extradition fugitive’s claims under the Torture Convention was litigated in Cornejo-Barreto v. Seifert. A panel of the United States Court of Appeals for the Ninth Circuit concluded that a fugitive facing extradition has a statutory right to judicial review of his claims under the Torture Convention, which attaches not during the extradition or habeas corpus proceedings, but after all the legal avenues are exhausted and the Secretary of State has signed the surrender warrant. Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000). A different panel of the Ninth Circuit subsequently rejected this conclusion and, in agreement with the position of the Executive Branch, held that the Secretary of State’s determination to extradite a fugitive is not subject to judicial review. Cornejo-Barreto v. Seifert, 379 F.3d 1075, 1089 (9th Cir. 2004). A majority of the Ninth Circuit judges voted to rehear the case en banc, but prior to the date of the rehearing, the Mexican government withdrew its extradition request pursuant to the dismissal of the Mexican state prosecution that served as the basis for the request. Upon motion of the government, the Ninth Circuit then dismissed the case as moot and vacated the second panel decision. Cornejo-Barreto v. Seifert, 839 F.3d 1307 (9th Cir. 2004). In Mironescu v. Costner, 345 F.Supp. 2d 538 (M.D.N.C. 2004) a district court recently held that a petitioner could not seek habeas review, asserting a CAT Article 3 claim, when the Secretary of State had not yet determined whether to extradite the petitioner, but concluded that it was inappropriate, given the stage of the proceedings, to decide whether the petitioner could seek habeas review after the Secretary has made a determination to extradite.

40. Since enactment of the Department of State regulations, torture claims have been raised in less than 1% of extradition cases and surrender warrants have been issued in all cases. In some of those cases, it was determined that the evidence submitted by the claimants provided no basis to conclude that it would be more likely than not that the claimants would be tortured. In several cases, assurances, which were deemed adequate, were received from the requesting country.

Article 4 (Torture as a criminal offense)

41. As discussed in the Initial Report and as restated in paragraph 16 above, within the United States, acts which would constitute torture under the Convention are punishable under state or federal law. This is also true of attempts to commit torture, conspiracies to commit torture and those who aid and abet the commission of an act of torture. Acts of torture committed outside the United States, as defined by the extraterritorial criminal torture statute, codified at 18 U.S.C. § 2340, in which the alleged offender is a national of the United States, or the alleged offender is present in the United States (irrespective of the nationality of the victim or alleged offender), are punishable under 18 U.S.C. § 2340A. The same prohibitions apply to persons who attempt to commit, conspire to commit, or aid and abet the commission of acts of torture within the definition contained in 18 U.S.C. § 2340.

Article 5 (Jurisdiction)

42. Since the submission of the Initial Report, two pieces of legislation, described below, were enacted that provide additional but distinct statutory bases for asserting jurisdiction over acts committed beyond the territory of the United States in addition to those discussed at paragraph 185 of the Initial Report. In addition to the extraterritorial criminal torture statute, which establishes extra-territorial jurisdiction over certain offenses involving torture, the statutes discussed below extend criminal jurisdiction over an array of offenses, which may include torture, when committed within the “Special Maritime and Territorial Jurisdiction of the United States” (SMTJ). See 18 U.S.C. § 7. As discussed in the Initial Report, certain provisions of the federal criminal code apply to acts taking place outside United States geographical territory, but which fall within the SMTJ.

43. On November 22, 2000, the President signed into law the “Military Extraterritorial Jurisdiction Act (MEJA),” codified at 18. U.S.C. §§ 3261 et seq. This statute extends criminal jurisdiction over certain categories of individuals for conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the SMTJ. As reflected in House Report No. 106-778(I) which was adopted by the House Judiciary Committee when it considered the statute, the background and purpose of the statute was to amend federal law to extend the application of its criminal jurisdiction to persons, including civilians, both United States citizens and foreign nationals, who commit acts while employed by or otherwise accompanying the U.S. Armed Forces outside the United States. It also extends federal jurisdiction to active duty members of the Armed Forces who commit acts while outside the United States, with one or more other defendants, at least one of whom is not subject to the UCMJ. See 18 USC 3261(d)(2). It also extends federal jurisdiction to former members of the Armed Forces who commit such acts while they were members of the Armed Forces, but who are not tried for those crimes by military authorities and later cease to be subject to the Uniform Code of Military Justice. Because many federal crimes, such as sexual assault, arson, robbery, larceny, embezzlement, and fraud, did not have extraterritorial effect, there was a “jurisdictional gap” that in many cases allowed such crimes to go unpunished. Although host nations have jurisdiction to prosecute such acts committed within their territory, they frequently declined to exercise jurisdiction when an American was the victim or when the crime involved only property owned by Americans. Accordingly, the statute was designed to close this gap by establishing a new federal crime involving conduct that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the U.S. As of January 1, 2005, there have been two prosecutions under MEJA, neither involving torture.

44. An additional legislative development that extended U.S. criminal jurisdiction extraterritorially was enacted on October 26, 2001, when the USA PATRIOT Act amended § 7 of Title 18 of the United States Code, which defines the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States. In pertinent part, a new paragraph 9 added to § 7 provides that, with respect to an offense that would otherwise apply within the SMTJ, committed by or against a national of the United States, premises of United States military or other United States Government missions or entities in foreign States are within the SMTJ. This paragraph, however, does not apply with respect to an offense committed by a person described in section 3261(a) of Title 18, United States Code, which codifies a provision of the Military Extraterritorial Jurisdiction Act described above.

45. The MEJA and SMTJ statutes each provide separate bases for asserting U.S. jurisdiction over extraterritorial crimes. Each statute was designed to address a different problem: MEJA was designed primarily to address the jurisdictional gap over civilians employed by, or accompanying, the armed forces overseas other than in times of a declared war; the expanded SMTJ in 18 U.S.C. §7(9), contained in the USA PATRIOT Act, was enacted as part of a comprehensive program to deal with the Global War on Terrorism. While neither statute was specifically designed to address torture, both statutes in fact complement the separate jurisdictional reach of the extraterritorial criminal torture statute. This is because, depending on the status of the offender or the victim, or the location of the offense, the U.S. may be able to assert jurisdiction over other crimes, which are related to torture, but may not meet the statutory elements of 18 U.S.C. §§ 2340 and 2340A, i.e. murder. It became apparent in 2004, however, that there was an unintended legislative anomaly to the enactment of 18 U.S.C. §7(9).

46. By expanding the territory within the SMTJ to include premises of United States military or other United States Government missions or entities in foreign States, the SMTJ statute had the effect of narrowing the reach of the extraterritorial criminal torture statute. The statute, by definition, only applies “outside the United States.” The term “United States” was originally defined as including “all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title [Title 18 of the U.S. Code, § 7 of which defines the Special Maritime and Territorial Jurisdiction of the United States] and section 46501(2) of title 49.” Thus, when the USA PATRIOT Act expanded the SMTJ, the extraterritorial criminal torture statute no longer applied to areas included in the expanded SMTJ. This anomaly was corrected by § 1089 of the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which amended 18 U.S.C. §2340(3) to read as follows: “‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.” By narrowing the definition of the United States, and making that definition part of the extraterritorial criminal torture statute, the reach of that statute is expanded prospectively, and the anomaly presented by the expansion of the SMTJ is now avoided. It also became apparent in 2004, that the MEJA statute did not cover situations involving contractors, unless they were employed by the Department of Defense. In October 2004, §1088 of the NDAA05 amended MEJA so that it covered a much broader group of contractors. 18 U.S.C. §3267’s definition of the term “employed by the Armed Forces outside the United States” in MEJA was amended to include “employees, contractors and subcontractors” of “any other Federal agency or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.”

47. The extraterritorial criminal torture statute. As discussed above in paragraph 12, the USA PATRIOT Act amended the extraterritorial criminal torture statute, codified at 18 U.S.C. §§ 2340, 2340A, to also provide extraterritorial jurisdiction over conspiracy to commit such offenses. As of January 1, 2005, the United States has considered applying the statute in several cases, but it has not initiated any prosecutions under this provision to date. In some cases, investigations are pending. As is necessarily true of any successful criminal prosecution, the available evidence must establish the various elements of the offense. Accordingly, in order for the extraterritorial criminal torture statute to apply, the conduct must fall within the definition of torture, it must have been committed subsequent to the effective date of the statute (November 20, 1994), and it must have been committed “outside the United States.”

48. The extraterritorial criminal torture statute is available to prosecute U.S. and foreign nationals “acting under the color of law,” provided that the enumerated elements of the offense are met. As a result of initial investigations in some cases, although criminal charges have not been brought under the extraterritorial criminal statute, immigration charges have resulted. Also, as discussed above, U.S. employees and contractors may also be subject to other criminal statutes governing their conduct extraterritorially, which apply in a broader range of circumstances than those described in the extraterritorial criminal torture statute. For example, depending on the circumstances, U.S. employees and contractors may be subject to those criminal statutes defining crimes within the SMTJ, which as discussed above in paragraph 47, generally includes overseas facilities (except for certain persons, such as members of the armed forces and those employed by or accompanying them, who are subject to MEJA or the United States Code of Military Justice). Those statutes defining crimes within the SMTJ prohibit, for example, assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

49. In the context of U.S. detention operations overseas, these criminal prohibitions may be available to prosecute abuses of detainees by particular members of the military (as noted, members of the military are also subject to the Uniform Code of Military Justice), intelligence and other non-military personnel. For example, on June 17, 2004, the Department of Justice announced that a contractor working for the Central Intelligence Agency had been indicted on charges stemming from the death of a prisoner in Afghanistan, Mr. Abdul Wali. The four-count indictment alleges that in June 2003 the contractor beat an Afghan prisoner who had surrendered voluntarily at the front of a U.S. detention facility near Asadabad in the northeast Kunar province of Afghanistan. The indictment includes two counts of assault causing serious injury and two counts of assault with a deadly weapon. Each count carries a maximum penalty of ten years in prison and a $250,000 fine upon conviction. The indictment charges that the assaults occurred within the expanded SMTJ provided by 18 U.S.C. §7(9).

Article 6 (Detention and preliminary inquiry in cases of extradition) and Article 7 (Extradite or prosecute)

50. As described in the Initial Report, federal law and bilateral extradition treaties provide the legal basis by which the United States can either extradite or prosecute individuals alleged to have committed offenses involving torture, as required by Article 7 of the Convention. Acts which would constitute or involve the offense of torture, as defined under the Convention, and as interpreted by the understandings expressed by the United States at the time of ratification, are crimes under state or federal law, and subject to prosecution by the appropriate authorities. The crime of torture also continues to fall within the scope of extradition treaties concluded by the United States since the time of its Initial Report.

Article 8 (Extraditable offenses)

51. Consistent with Article 8 of the Convention, any act of torture within the meaning of the Convention continues to be an extraditable offense under relevant United States law and extradition treaties with countries that are also party to the Convention. The crime of torture continues to fall within the scope of extradition treaties concluded by the United States since the time of its Initial Report.

52. Since the Initial Report, the United States has received a small number of requests for extradition involving individuals wanted for serious human rights abuses or war crimes. Since October 1999, the United States extradited Elizaphan Ntakirutimana to the International Criminal Tribunal for Rwanda (ICTY), which had requested his extradition for genocide, complicity in genocide, and crimes against humanity.

Article 9 (Mutual legal assistance)

53. As discussed in the Initial Report, United States law permits both law enforcement authorities and the courts to request and to provide many forms of “mutual legal assistance” in criminal cases covered by the provisions of the Torture Convention.

Article 10 (Education and Information)

54. As described in the Initial Report, a variety of training programs exist at the federal, state and local level to educate law enforcement personnel, corrections officers and immigration officials in the proper treatment of persons in custody, including information related to the prohibition against torture and other abuses. Training programs for the U.S. Armed Forces, particularly regarding the prohibition of torture and other standards governing detentions by the U.S. Armed Forces in Afghanistan, Guantanamo Bay, and Iraq are described in greater detail in Annex 1.

55. The United States continues to attach considerable importance to the task of providing education and information regarding the prohibition against torture and other abuses to persons who may be involved in the custody, interrogation, and treatment of persons arrested, detained or imprisoned. In furtherance of this effort, and as was the case with the Initial Report, this report will be posted on the U.S. Department of State web site: http://www.state.gov/g/drl.

56. As part of a broader effort to educate and inform the public, on June 26, 2004 honoring the U.N. International Day in Support of Victims of Torture, President Bush reaffirmed the U.S. commitment to ending torture and stated that the U.S. “stands against and will not tolerate torture.” See Annex 2. In so doing, the President informed the public and the international community of U.S. programs aimed at combating torture and assisting victims of torture. President Bush issued a similar statement in honor of victims of torture on June 26, 2003, which can be found at http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html, and the Department of State has also issued similar statements. Additionally, as allegations of abuses have surfaced with respect to detentions of foreign nationals by the U.S. Armed Forces (see Annex 1), U.S. officials have repeatedly condemned the use of torture. At the same time, the U.S. Congress, advocacy groups, and the press have directed considerable attention to these issues.

Article 11 (Interrogation techniques)

57. As described in the Initial Report, police interrogation of criminal suspects is strictly regulated by court-made rules based on constitutional law. As a result, the methods and practices of interrogation of criminal suspects and their treatment while in custody are routinely subject to judicial review and revision.

58. Concerns have been raised about what detention and interrogation practices were authorized on the basis of the memorandum drafted by the Department of Justice’s Office of Legal Counsel in August 2002 interpreting the extraterritorial criminal torture statute (discussed at paragraph 13). On June 22, 2004, upon the release of numerous government documents related to interrogation techniques and U.S. laws regarding torture, then White House Counsel Alberto Gonzales stated the following:

“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.”

59. Interrogation techniques employed by U.S. government personnel and contractors have been reviewed in light of the revised Department of Justice Office of Legal Counsel memorandum of December 30, 2004. See Annex 1.

Article 12 (Prompt and impartial investigation)

60. As noted in the Initial Report, as a matter of law, policy and practice, the competent authorities at all levels of Government and in all components of the U.S. government should proceed with a thorough, prompt and impartial investigation whenever they have reason to believe that an act of torture or other abuse has been committed within their jurisdiction. The discussion under Article 2 above demonstrates the commitment of the law enforcement mechanisms in the United States to investigate and rigorously prosecute such abuses in cases within their respective spheres of jurisdiction. Depending on the circumstances, and as noted in the discussion referred to above, this may include prosecutions of misconduct that may arise at the federal, state, county or local law enforcement levels.

Article 13 (Right to complain)

61. As indicated in the Initial Report, individuals who allege that they have been subject to torture or other forms of mistreatment have numerous opportunities to bring complaints and to have their cases promptly and impartially examined by competent authorities.

62. Legislation on Victims’ Rights. On October 30, 2004, President Bush signed H.R. 5107, known as the Justice for All Act of 2004. [Pub. L. 108-405] Title I of that Act amends the Federal criminal code to grant victims specified rights, including: (1) the right to be protected from the accused, to be heard at any public proceeding involving release, plea, or sentencing, and to be treated with fairness and respect; (2) the right to timely notice of any public proceeding involving the crime or any release or escape of the accused and to proceedings free from unreasonable delay; (3) the right to confer with the Government attorney; and (4) the right to full and timely restitution. It also authorizes grants to help states implement and enforce their own victims’ rights laws. Other provisions of the law relate to the expanded and improved use of DNA evidence in the criminal justice system.

63. Victims’ Assistance Programs. The Office for Victims of Crime (OVC) within the U.S. Department of Justice administers programs authorized by the Victims of Crime Act of 1984, as amended, in addition to the Crime Victims Fund (the Fund), which is also authorized by the same statute. The Fund is composed of criminal fines and penalties, special assessments, and bond forfeitures collected from convicted federal perpetrators, as well as gifts and donations received from the general public. Money deposited in this fund is used to support a wide range of activities on behalf of crime victims, including victim compensation and assistance services, demonstration programs, training and technical assistance, program evaluation and replication, and programs to assist victims of terrorism and mass violence.

64. OVC administers two major formula grant programs: Victim Assistance and Victim Compensation. During the past decade, these two grant programs have greatly improved the accessibility and quality of services for federal and state crime victims nationwide.

65. Victim Assistance. Each year, all 50 states, the District of Columbia and various U.S. territories are awarded OVC funds to support community-based organizations that serve crime victims. Approximately 6,400 grants are made to domestic violence shelters, rape crisis centers, child abuse programs, and victim service units in law enforcement agencies, prosecutors’ offices, hospitals, and social service agencies. These programs provide services including crisis intervention, counseling, emergency shelter, criminal justice advocacy and emergency transportation. States and territories are required to give priority to programs serving victims of domestic violence, sexual assault, and child abuse. Additional funds must be set aside for underserved victims, such as survivors of homicide victims and victims of drunk drivers.

66. Victim Compensation. All 50 states, the District of Columbia, Puerto Rico and Guam have established compensation programs for crime victims. These programs reimburse victims for crime-related expenses such as medical costs, mental health counseling, funeral and burial costs, and lost wages or loss of support. Compensation is paid only when other financial resources, such as private insurance and offender restitution, do not cover the loss. Some expenses are not covered by most compensation programs, including theft, damage, and property loss. Although each state compensation program is administered independently, most programs have similar eligibility requirements and offer comparable benefits.

67. Congress has twice re-authorized the Torture Victims Relief Act (TVRA) [P.L. 105-320], since its initial enactment in 1998. Most recently, the TVRA Reauthorization Act of 2003 [P.L. 108-179], which authorized further increases in funding, was signed by the President on December 15, 2003. The Act authorizes funding for the U.S Department of Health and Human Services (HHS) to support treatment centers inside the U.S. and for programs for the treatment of victims of torture abroad. The Act also authorizes funding for the U.S. Agency for International Development (USAID) to support centers in foreign countries and programs for the treatment of victims of torture. Finally, as a result of the Act’s authorizations of appropriations to the United Nations Voluntary Fund for Victims of Torture, the United States continues to lead the world in its support of the United Nations Voluntary Fund For Victims of Torture. Appropriations to the Fund, distributed through the Department of State, were:

Fiscal Year Amount

1999. $3 million
2000. $5 million
2001. $5 million
2002. $5 million
2003. $5 million
2004. $5.5 million

1. Domestic Assistance to Victims of Torture. Since the late-1990’s the National Institute of Mental Health of the National Institutes of Health within the U.S. Department of Health and Human Services has funded research for survivors of torture and related trauma. HHS, in coordination with other Departments and Congress, has reached out to representatives from the human rights, refugee, and medical communities to discuss treatment for torture survivors.

2. The Office of Refugee Resettlement (ORR) within the Agency for Children and Families (ACF) of the U.S. Department of Health and Human Services (HHS) awards funds to assist survivors of torture. In fiscal year (FY) 2000, the first year of this program, Congress appropriated $7.5 million for services and rehabilitation for survivors of torture. From FY 2001 through 2004, Congress has appropriated $10 million each year to HHS, which has supported 25 torture treatment programs in fifteen states.

3. The activities funded by ORR include the following: training refugee resettlement staff, English language teachers, volunteers and community services staff to identify torture survivors and refer them to the services they need; orienting refugees to the help available from mental health services; and orienting mental health professionals to serve refugees effectively across language and cultural barriers.

4. ORR works with a network of non-profit organizations around the country whose mission is to serve the needs of torture survivors. The services needed by survivors of torture are a combination of medical care, spiritual healing, psychological help and other social and legal services. The Center for Victims of Torture (CVT) in Minneapolis, Minnesota provides technical assistance to these organizations. CVT has assisted centers in building data management systems to manage clients, aided in the development of fundraising, and trained professionals in the particulars in treating members of this population. Other examples of projects funded under this program include: the Arab Community Center for Economic and Social Services in Dearborn, Michigan, which operates a career counseling and training center to assist survivors identify career options; Community Mental Health Services in Falls Church, Virginia, which has a transitional housing program to provide housing for survivors for up to six months; and Solace/Safe Horizon, which provides survivors with culturally and linguistically appropriate mental health services.

5. Foreign Assistance to Victims of Torture. In keeping with its legislative mandate under the Torture Victims Relief Act of 1998 and its subsequent reauthorizations, the U.S. Agency for International Development (USAID) works through the Victims of Torture Fund (VTF) to assist the treatment and rehabilitation of individuals who suffer from the physical and psychological effects of torture. According to the International Rehabilitation Council for Torture Victims (IRCT), rehabilitation aims to empower the torture victim to regain the capacity, confidence, and ability to resume as full a life as possible. In FY 2000, Congress appropriated $7,500,000 to USAID for assistance to survivors of torture. For FY 2001 and 2002, Congress appropriated $10,000,000 in each year. The appropriation levels for FY 2003 and 2004 were $7,950,000 each year.

6. Toward this end, the Fund administers treatment programs based in 26 countries that span four regions (Latin America and the Caribbean, Africa, Asia and the Near East, and Europe and Eurasia). Currently, VTF is supporting treatment programs that attend to the medical, psychological, and social needs of torture survivors and their families. In addition to treatment services, some programs include advocacy, training, technical assistance, and research.

7. To complement the work that the Fund supports in the particular countries, the Fund also supports a global initiative through support for the Center for Victims of Torture (CVT) to strengthen the capacity of 15 treatment centers located in Africa, Asia, the Near East, Latin America, and Eastern Europe and to enhance their organizational and financial sustainability, clinical capacity and services, and advocacy campaigns.

8. Additionally, the Fund supports several regional initiatives. In Latin America and the Caribbean, the Fund supports the Inter-American Institute for Human Rights (IIHR) and the Center for Justice and International Law (CEJIL) and their collaborative work to provide psychological support for victims or relatives bringing claims of torture and cruel, inhuman, and degrading treatment before the Inter-American system of human rights. In Southern Africa, the Fund works through the Inter-African Network for Human Rights and Development (Afronet), a host organization for the Southern Africa Human Rights NGO Network (SAHRINGON), to strengthen the capacity of selected human rights nongovernmental organizations in the region to monitor, document, and advocate against torture and violence. In West Africa, the Fund supports the International Rescue Committee (IRC), the CVT, and Search for Common Ground (SFCG) in their program collaborating with national and sub-regional social organizations and employing a cross-border approach to facilitate the return and rehabilitation of refugees and to improve access to information.

Article 14 (Right of redress and/or compensation)

9. As described in the Initial Report, the legal system of the United States provides a variety of mechanisms through which persons subjected to torture or other abuse may seek redress, which are consistent with the obligations assumed by the United States upon ratification of the Convention.

10. Civil actions in state and federal courts. Individuals continue to file civil suits in state and federal courts seeking redress against officials for allegedly violating their rights, which may involve seeking monetary damages or equitable or declaratory relief. One of the most common methods by which prisoners seek redress against state and municipal officials is by means of a civil law suit for violations of fundamental rights pursuant to 42 U.S.C. § 1983. Some examples of such civil litigation follow.

* On February 20, 2003, the city of Oakland, CA agreed to a $10.9 million settlement with dozens of plaintiffs in federal court who said they were victimized by four Oakland police officers, infamously known as the “Riders.” Allegations included excessive use of force, planting of evidence, and assault and battery. In addition to the monetary settlement, the Oakland Police Department was compelled to make systemic changes to bolster the accountability of the department.

* On September 26, 2002, the Court of Appeals of Arizona upheld the decision of a trial court jury that handed down a judgment against a local sheriff in an incident where an inmate in the county jail brutally attacked another inmate. The incident gave rise to a civil rights claim for damages under § 1983. The sheriff was found by the jury to have demonstrated deliberate indifference to inmate safety. The jury awarded, and the appellate court affirmed the award of compensatory and punitive damages.

* On April 5, 2002, a federal jury awarded a NY woman nearly $1.7 million in punitive and compensatory damages in a § 1983 civil rights suit after being victimized by the excessive force of a NY police officer.

* In June 2001, the city of Asbury Park, NJ agreed to a $5 million settlement with the family of a man who hung himself while in custody of the police. The police failed to notice the man committing suicide, despite video surveillance of his holding cell, until such a late point that he was left in a permanent vegetative state. The suit was settled just prior to June 11, 2001, the scheduled start date for the trial.

* In 2001, the District of Columbia spent over $3 million to settle allegations of police and prison guard brutality. Nearly $2 million was spent to settle 45 prisoner abuse cases that included inmate-on-inmate violence and beatings by prison guards. The remaining money was used to settle 48 allegations of police brutality and false arrest.

11. Alien Tort Statute. As discussed in the Initial Report, the Alien Tort Statute (ATS), which was enacted in 1789 and is currently codified at 28 U.S.C. § 1350, provides that “[the] district courts shall have original jurisdiction in any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The United States Supreme Court recently had occasion to consider the ATS in Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004). While adopting a restrictive interpretation of the range of civil actions that could be brought under this statute consistent with the intent of the legislators who originally enacted it, the Court left open the possibility that federal courts may recognize as a matter of federal common law claims for damages based on alleged violations of the law of nations.

12. Torture Victims Protection Act (TVPA). As described in the Initial Report, the 1992 Torture Victims Protection Act allows both foreign nationals and United States citizens to claim damages against any individual who engages in torture or extrajudicial killing under “actual or apparent authority, or under color of law of any foreign nation.” It allows suits for redress for torture or extrajudicial killings perpetrated by officials of foreign governments. In July 2002, following a four week trial of a suit brought under the TVPA, a federal jury in the Southern District of Florida in West Palm Beach returned a verdict of $54.6 million against two Salvadoran generals for their responsibility for the torture of three Salvadorans in the early 1980s. Romagoza Arce v. Garcia, No. 99-8364 CIV-Hurley (S.D. Fla. Feb 17, 2000) The U.S. Court of Appeals for the Eleventh Circuit subsequently reversed this decision on the grounds that the claims were time-barred by the statute of limitations. Romagoza Arce v. Garcia, No. 02-14427 (11th Cir. 2005)

13. Treatment and rehabilitation. As noted in the Initial Report, the United States continues to hold the view that in addition to monetary compensation, States should take steps to make available other forms of remedial benefits to victims of torture, including medical and psychiatric treatment as well as social and legal services. For examples of the U.S. commitment to such programs, see paragraphs 66-78.

14. The United States continues to be a haven for victims of persecution in foreign lands, including torture victims. Various private facilities exist in the United States for the treatment of individuals who suffered torture abroad. The CVT in Minneapolis, Minnesota, established in 1985, is the nation's pre-eminent comprehensive torture treatment center. Other facilities exist in the following locations: Hotevilla, Arizona; Phoenix, Arizona; Los Angeles, California; San Diego, California; San Francisco, California; San Jose, California; Denver, Colorado; Clearwater, Florida; Chicago, Illinois; Baltimore, Maryland; Dearborn, Michigan; Lincoln, Nebraska; New York, New York; Columbus, Ohio; Portland, Oregon; Philadelphia, Pennsylvania; and Falls Church, Virginia.

Article 15 (Coerced statements)

15. United States law continues to provide strict rules regarding the exclusion of coerced statements and the inadmissibility of illegally obtained evidence in criminal trials.

16. Also, some states have taken steps recently to further protect the rights of the accused. In 2003, Illinois passed a crime law that requires police to videotape or audiotape questioning of suspects in homicide cases for the entirety of the interview. The reform measure joins Illinois with Alaska and Minnesota as the leading states to require such tapings.

Article 16 (Other cruel, inhuman or degrading treatment or punishment)

17. As the President of the United States explained on the United Nations International Day in Support of Victims of Torture, in addition to its commitment to investigating and prosecuting all acts of torture, the United States will “undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.” See Annex 2.

18. In the United States a robust legal and policy framework operates to give effect to U.S. obligations under Article 16 of the Torture Convention. Article 16 requires that States parties act 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, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The particular undertakings of Article 16 are those specified in Articles 10-13, “with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.” As we did in the Initial Report, we note the reservation to Article 16 included by the United States in its instrument of ratification: “That the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” As described in the Initial Report, federal and state law provide extensive protections against conduct that may amount to cruel, inhuman or degrading treatment or punishment.

19. The Initial Report addressed a number of specific issues of concern where law enforcement authorities acted in a manner inconsistent with the legal framework described above. Many of the shortcomings described in the Initial Report continue to arise in particular instances. At the same time, however, U.S. law continues to provide effective mechanisms at the federal and state level to address such abuses and to prevent their recurrence.

20. As we noted earlier in paragraph 18, although the examples cited below in the discussion under Article 16, like other examples cited throughout the report, do not necessarily involve acts of torture as defined under Article 1 of the Convention, as ratified by the United States, or cruel, inhuman or degrading treatment or punishment as defined under Article 16 of the Convention, as ratified by the United States, they are included to illustrate the commitment of the United States, or as the case may be, the sub-Federal level authorities in the United States, to prevent and prosecute serious abuses, whether or not they fall within these definitions of torture or cruel, inhuman or degrading treatment or punishment.

21. Police brutality. Efforts continue to be made to punish and prevent police brutality. Indeed, the discussion in paragraph 21 above that includes an illustrative list of prosecutions of law enforcement officers who employed unlawful force illustrates both the continuing problems that arise in this area as well as the resolve of the United States to take action to both punish the perpetrators of such abuses and to prevent their recurrence. As discussed in the Initial Report, and as evidenced by the discussion above, certain excessive use of force by law enforcement officers violates the United States Constitution and federal law, as well as the law of the state where the incident occurs. United States law, at both the federal and state level, continues to provide victims of such abuses several methods for seeking compensation and rehabilitation as well as grounds for punishing those who have used excessive force.

22. Conditions of Confinement. U.S. law enforcement authorities continue to work to improve conditions of confinement in detention facilities within the United States. In fact, the discussion in paragraph 27 above provides an illustration of such problems, as well as the mechanisms employed by the Civil Rights Division of the Department of Justice to challenge conditions of confinement in various prisons and other remedies available under federal and state law. United States law, at both the federal and state level, continues to provide inmates themselves with several methods to challenge conditions of confinement. Indeed, it is common practice in prisons and jails throughout the United States for inmates to challenge conditions of confinement in federal and state courts as evidenced by the numerous district and appellate court decisions handed down every year in federal reporters (collections of federal case decisions), and as further exemplified by the discussion under paragraph 27 above. Additionally, various non-governmental organizations continue to employ advocacy and litigation to draw attention to sub-standard conditions in the nation’s prisons. For example, as a result of a class-action lawsuit over conditions for prisoners in a county jail in Washington State filed by the ACLU’s National Prison Project in February 2002, a U.S. District Court approved a settlement agreement in January 2004 to improve conditions for inmates in the jail.

23. As indicated in the Initial Report, the United States Constitution, along with federal and state laws, establishes standards of care to which all inmates are entitled. The Federal Bureau of Prisons (BOP) meets its constitutional and statutory mandates by confining inmates in prisons and community-based facilities that are safe, humane, and appropriately secure, and that provide opportunities and programs to help inmates develop the personal and work-related skills they will need to maintain a crime-free lifestyle after release.

24. The BOP strives to ensure that all inmates in its custody are treated fairly and with dignity. The agency does not tolerate abuse of inmates, and takes all allegations of staff misconduct and the mistreatment of inmates very seriously. Every allegation is investigated vigorously and thoroughly. If warranted, offending staff are referred for prosecution.

25. Supermaximum security prisons. For certain violent inmates, supermaximum security (“supermax”) facilities may be necessary, for among other reasons, to protect the safety of the community at large and of other members of the prison population. As discussed in the preceding paragraphs, U.S. law requires that prisons throughout the United States satisfy U.S. constitutional requirements. When they fail to do so, a variety of remedies are available, as described under Article 2 above. For example, in March 2003, the ACLU and others settled a lawsuit brought against Wisconsin’s Department of Corrections regarding conditions at its supermax prison in Boscobel, Wisconsin. The settlement agreement included a ban on seriously mentally ill prisoners being housed in the facility; a modest improvement to exercise provision and rehabilitation programs; and a reduction in the use of restraints and electro-shock control devices.

26. Sexual abuse of prisoners. Law enforcement authorities in the United States continue to prevent and punish acts of sexual abuse committed against prisoners. Illustrative of the problem of sexual abuse in correctional facilities are the facts animating United States v. Arizona and United States v. Michigan, both filed in 1997 and dismissed in 1999 and 2000, respectively, subject to a settlement whereby state prisons agreed to make significant changes in conditions of confinement for female inmates. In these cases, brought pursuant to CRIPA, described above, the Department of Justice’s Civil Rights Division sought to remedy a pattern or practice of sexual misconduct against female inmates by male staff, including sexual contact and unconstitutional invasions of privacy.

27. Enhancing the protections already in place under U.S. law, the Prison Rape Elimination Act of 2003 (PREA) [Pub. L. 108-79] was enacted by Congress to address the problem of sexual assault of persons in the custody of U.S. correctional agencies. The Act applies to all public and private institutions that house adult or juvenile offenders and is also relevant to community-based agencies. On September 4, 2003, President George W. Bush signed PREA into law. The purpose of the Act is to: (a) establish a zero-tolerance standard for the incidence of rape in prisons in the United States; (b) make the prevention of prison rape a top priority in each prison system; (c) develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; (d) increase the available data and information on the incidence of prison rape, consequently improving the management and administration of correctional facilities; (e) standardize the definitions used for collecting data on the incidence of prison rape; (f) increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape; (g) protect the Eighth Amendment rights of federal, state, and local prisoners; (h) increase the efficiency and effectiveness of federal expenditures through grant programs such as those dealing with health care, mental health care, disease prevention, crime prevention, investigation, and prosecution, prison construction, maintenance, and operation, race relations, poverty, unemployment, and homelessness; and (i) reduce the costs that prison rape imposes on interstate commerce.

28. Additionally, the Director of the Bureau of Prisons has repeatedly affirmed, both to BOP staff and the public, the agency’s zero tolerance standard for sexual abuse of inmates. The agency is committed to developing systemic approaches to prevent and control sexual abuse in prisons. As part of this initiative, in 1997 the BOP issued a policy on sexual abuse and sexual assault prevention and intervention programs. Program Statement 5324.04, Sexual Abuse/Assault Prevention Programs, updated December 31, 1997, addresses (1) prevention of sexual assaults on inmates, (2) the safety and treatment needs of inmates who have been sexually assaulted, and (3) discipline and prosecution of those who sexually assault inmates. The policy requires that all staff receive training annually to recognize the physical, behavioral, and emotional signs of sexual assault, understand the identification and referral process when a sexual assault occurs, and have a basic understanding of sexual assault prevention and response techniques.

29. BOP staff receive training annually on this topic. BOP staff members know that inmates must report inappropriate conduct by staff and that inmates will be safeguarded against any reprisals by staff or inmates. BOP staff members also know that if they become aware of sexual activity occurring between staff and inmates, they must report such conduct or be subject to disciplinary action. In addition, all federal inmates receive a pamphlet about sexual abuse; and, during orientation to the institution, inmates are taught that it is illegal for a staff member to have sexual contact with an inmate, how they should report such contact, and what process they will go through once a report is made.

30. The BOP takes seriously all allegations of sexual misconduct and refers such matters to appropriate investigative agencies. Allegations of mistreatment of prisoners are ordinarily investigated by the Department of Justice’s Civil Rights Division or the Office of Inspector General. Some examples follow.

* On November 25, 2003, the Division reported its findings of its investigation of the McPherson Correctional facility in Newport, Arkansas. The Division found that serious problems existed at the McPherson facility with regard to sexual misconduct. The Division noted lapses in supervision of staff and inmates, privacy violations, and substandard investigations.

* On March 6, 2003, the Division reported its findings regarding the Santa Fe County Adult Detention Center in which the Division recommended that the Detention Center make more concerted efforts to guide and train staff, avoid leaving female inmates isolated and vulnerable, and improve the system of reporting and investigating allegations of sexual misconduct.

31. Examples of prosecutions of law enforcement officers for abusing female detainees and inmates by the U.S. Department of Justice’s Civil Rights Division include the following examples:

* On September 24, 2003, a North Carolina state police officer pleaded guilty to a felony civil rights charge for coercing women, whom he stopped or arrested, into having sex with him. He was sentenced to ten years in prison.

* On November 9, 2000, a correctional officer captain from a jail in Florida pled guilty to having forcible sexual contact with a female inmate and was sentenced to 15 months in prison.

On March 23, 2000 a U.S. Bureau of Prisons correctional officer in Oklahoma City was convicted of engaging in various degrees of sexual misconduct with five female inmates. He was sentenced to 146 months in prison.

January 23, 2001 a Florida Department of Corrections officer with the Metro Dade Jail was convicted of assaulting a female inmate resulting in multiple contusions to her face, back and neck. He was sentenced to 17 months in prison.

32. Restraint devices. The use of restraint and electro-shock devices continues to form the basis of allegations of abuse by law enforcement officers. Advocacy groups have directed considerable attention to publicizing such allegations and taking legal action to remedy alleged abuses. According to a 2002 Amnesty International report, between 2000 and 2002, at least four inmates died in the United States after being subdued in a restraint chair. In February 2001, the American Civil Liberty Union’s National Prison Project and the Connecticut branch of the ACLU filed a lawsuit against the Connecticut Department of Corrections alleging that Connecticut prisoners held in a Virginia state prison, Wallens Ridge State Prison, were being subjected to cruel and unusual punishment in violation of the U.S. Constitution, by being placed in mechanical restraints for prolonged periods for minor offenses.

33. At the federal level, whether inmates are in the custody of the Federal Bureau of Prisons, or the U.S. Marshals Service (USMS), the use of restraint devices, including electro-shock devices, is permissible, subject to imposition in a manner consistent with the applicable policies and procedures. As described in greater detail below, such devices are sparingly used, if at all, and only as a last resort.

34. In federal prisons, the BOP’s Program Statement 5566.05, Use of Force and Application of Restraints on Inmates, updated December 31, 1996, applies. It outlines specific procedures and protocols for the use of force and restraints. The BOP authorizes staff to use force only as a last alternative after all other reasonable efforts to resolve a situation have failed. Staff are authorized to use only the amount of force necessary to gain control of the inmate; to protect and ensure the safety of inmates, staff, and others; to prevent serious property damage; to enforce institution regulations; to prevent a crime or to apprehend someone who is believed to have committed a crime; and to ensure the security and good order of the institution. Staff may immediately use force if it is determined through sound correctional judgment that an inmate’s behavior constitutes an immediate, serious threat to the safety of another individual, or to the security of the institution and its property. Staff may use force in an immediate (rather than calculated) fashion if it is determined through sound correctional judgment that an inmate’s behavior constitutes an immediate, serious threat to the safety of another individual, or to the security of the institution and its property.

35. Staff are authorized to apply physical restraints to gain control of an inmate who appears to be dangerous because the inmate is assaulting another individual, destroying government property, attempting suicide, inflicting injury upon himself or herself, or displaying signs of imminent violence. Four-point restraints can be used when the warden has determined that this method is the only means available to maintain control of an inmate. The BOP uses soft four-point restraints unless soft restraints have been previously proven ineffective on the inmate. The BOP’s use of restraint chairs is intended only for short-term use, such as transporting an inmate on or off of an airplane. The BOP policy outlines procedures that call for the guidance of health care personnel in the application of restraints and for qualified staff to regularly check the restraints and the inmate’s medical condition.

36. The BOP routinely removes inmates from secure institutions, typically for medical treatment, inmate transfers, and court appearances. The safety of citizens and staff, as well as the security of inmates, is paramount during these moves. Some of these escorted trips involve high-risk inmates who require full physical restraints. To increase security and reduce the risk to the community in these instances, “stun belts" have been adopted for agency use, but only for Maximum custody inmates who require greater security than can be afforded through conventional restraints. To date the BOP has not activated the stun belt on an inmate.

37. The stun belt is a defensive device. Only trained, qualified staff members at the supervisory level are authorized to apply and activate a stun belt during an escorted trip. When activated, it produces a medically tested, less than lethal electrical charge of 50,000 volts, which temporarily immobilizes the inmate without causing permanent injury, allowing staff to regain immediate control of the situation. The stun belt has been determined to be essentially harmless to individuals in good health. The BOP medical staff have reviewed the stun belt and concluded the technology is medically safe for use on the great majority of the BOP's inmate population. The exceptions are: 1) pregnant female inmates, 2) inmates with heart disease, 3) inmates with multiple sclerosis, 4) inmates with muscular dystrophy, and 5) inmates who are epileptic. As part of pre-escort screening, inmates identified as having these conditions are prohibited from wearing the belt.

38. When federal pretrial detainees are remanded to the custody of the U.S. Marshals Service, USMS policies and procedures regarding restraints apply. However, the USMS does not operate any facilities that house pretrial detainees. Rather, the USMS contracts with state, local, and private jails throughout the United States to house and care for federal pretrial detainees. Although the daily safekeeping and care of federal pretrial detainees is the responsibility of these jails, the jails must nonetheless undergo regular USMS inspections under the standards promulgated by the U.S. Department of Justice and the American Correctional Association.

39. Stun belts are also used for courtroom security purposes to control potentially violent defendants. The stun belt is placed underneath the clothing of the individual, on the individual’s waist, and is activated by remote control.

40. The USMS has distributed approximately 200 stun belts to district offices across the country, principally for use on high-risk federal prisoners in courtrooms. The use of stun belts is strictly regulated pursuant to USMS policy and procedures, including application and activation guidelines and reporting procedures. Any deputy who is authorized to employ the device must successfully complete a four-hour basic certification program, including a written and practical examination, ensuring that he/she is competent in the proper use of the belt. Stun belts are placed on federal prisoners in court only with the court’s approval and are not utilized where a prisoner’s medical condition would pose a danger with its application. In fact, the actual practice of the USMS reveals that stun belts have been sparingly activated. The USMS reports that there have been two instances in which USMS staff have intentionally activated the device. In both instances they were deployed in courtroom settings and the detainee suffered no injuries in either case. In addition, current FAA regulations have not approved the use of stun belts on board aircraft.

The USMS believes that, although resort to activation of stun belts is infrequent in U.S. courts, stun belts are a proper, safe, legal and effective part of the USMS overall courtroom security program. In instances in which USMS personnel must physically control a prisoner, this device, if activated, would allow USMS personnel to restrain the prisoner in a manner that presents less of a physical danger to U.S. personnel and others requiring protection from the accused. Alternatively, USMS personnel must either choose to strike a violent defendant with an expandable baton or with a hand/foot technique. Chemical/pepper spray is another option. However, the use of such spray in the courtroom poses substantial difficulties in the cross contamination of other parties such as the judge and jurors, as well as a higher probability of physical injury to the prisoner and the USMS personnel. Finally, the United States Court of Appeals for the Ninth Circuit recently upheld the constitutionality of placing a stun belt on a defendant for security purposes in the courtroom. Hawkins v. Comparet, 251 F.3d 1230, 1240-42 (9th Cir. 2001). In that decision, the court recognized the effectiveness of the stun belt to ensure courtroom security without prejudicing a defendant’s right to a fair trial. See also United States v. Joseph, 333 F.3d 587, 590-591 (5th Cir. 2003), cert. denied, 124 S.Ct. 446 2003).

At the state level, while the use of electro-shock devices continues in many state courts and prisons, some state courts have taken steps to curtail the application of such devices. In 2001, the Supreme Court of Indiana banned the use of stun belts on defendants in court. Wrinkles v. State, 749 N.E. 2d 1179, 1194 (Ind. 2001).

More recently, other states have also limited the use of stun belts. In 2002, the California Supreme Court ruled that the use of a stun belt requires a showing, on the record, of a manifest need for such restraints, supported by evidence of "violence or a threat of violence or other nonconforming conduct" by the defendant. People v. Mar, 52 P.3d 95, 104-5 (Cal. 2002). Illinois courts have begun taking steps to limit the use of stun belts during state trials. In 2004, the Appellate Court ruled that the use of stun belts must be held to the same stringent requirements as those for other physical restraints, and that failure to do so constituted a violation of the defendant’s due process rights. People v. Martinez, 808 N.E.2d 1089 (Ill.App.Ct. 2004).

41. Detention of juveniles. The Department of Justice continues to make it a priority to investigate and remedy unlawful conditions in juvenile justice facilities across America. Between October 1, 1999 and January 1, 2005, the Civil Rights Division authorized 16 investigations covering 26 juvenile justice facilities, issued eight findings letters – letters detailing patterns or practices of civil rights violations and minimum remedial measures to remedy the violations – regarding conditions in 17 juvenile justice facilities, and entered 11 settlement agreements involving 26 facilities. In fiscal year 2004, the Civil Rights Division authorized five investigations of five facilities; issued three findings letters regarding conditions at six facilities; filed one lawsuit involving two facilities; and entered three consent decrees or agreements regarding four facilities.

42. The Civil Rights Division's investigations of juvenile facilities have revealed that, in various locations throughout the country, there are facilities that contravene the constitutional and/or statutory rights of the resident inmates. In December 2003, the Division sued Mississippi over the conditions of confinement at the Oakley Training School in Raymond, Mississippi and the Columbia Training School in Columbia, Mississippi. The Division’s investigation found evidence of numerous abusive practices, including hogtying, pole-shackling, and placing suicidal students for extended periods of time into a “dark room,” naked, with only a hole in the floor for a toilet. Children who became ill during strenuous physical exercise were made to eat their vomit. As of January 1, 2005, the Civil Rights Division remains in litigation with the State of Mississippi.

43. Although practice varies within prisons at the state level, in federal prisons, juveniles are not regularly held in prison with the regular prison population. Federal law prohibits juvenile offenders held in custody of federal authorities from being placed in correctional institutions or detention facilities in which they could have regular contact with adult offenders. See 18 U.S.C. § 5039.

44. Care and Placement of Unaccompanied Alien Children. In March 2003, § 462 of the Homeland Security Act of 2002 transferred functions under U.S. immigration laws regarding the care and placement of unaccompanied alien children (UACs) from the Commissioner of the Immigration and Naturalization Service to the Office of Refugee Resettlement (ORR) within the Administration for Children and Families (ACF) at the Department of Health and Human Services.

45. Responsibilities of ORR under the law include: making and implementing placement determinations and policies, identifying sufficient qualified placements to house UACs, ensuring that the interests of the child are considered in decisions related to the care and custody of UACs, reuniting UAC with guardians and/or sponsors, overseeing the infrastructure and personnel of UAC facilities, conducting investigations and inspections of facilities housing UACs, collecting and comparing statistical information on UACs, and compiling lists of qualified entities to provide legal representation for UACs.

46. The UAC Program has accomplished a great deal since its inception within ORR. The program has made great strides in improving overall services within facilities, including enhanced clinical and mental health services. The program has also been faced with a dramatic increase in the number of apprehended juveniles due to increased Department of Homeland Security border initiatives. As a result, the program has added over 300 shelter/foster care beds to accommodate the influx, marking a significant achievement for this program. This was accomplished without reliance on secure detention facilities. In fact, since March 2003 the program has dramatically reduced its reliance on secure detention by ensuring that only those with a severe criminal background are placed in a secure juvenile facility. Children are never mixed with an adult population, since the current facilities under contract are licensed to serve only juvenile populations. Currently, less than 2 percent of the total UAC population is in a secure environment. Finally, all facilities are required to ensure an appropriate level of care in terms of education, counseling, recreation and mental health services.

47. Abuse of the institutionalized. Between October 1 1999 and January 1, 2005, pursuant to CRIPA, described above in paragraph 26, the Civil Rights Division authorized 5 investigations covering 8 facilities housing persons with mental illness, 6 investigations covering 6 facilities housing persons with developmental disabilities, and 10 investigations covering 10 nursing homes. During that period, the Civil Rights Division entered into four settlement agreements concerning three facilities housing persons with mental illness, 10 settlement agreements concerning 17 facilities housing persons with developmental disabilities, and 3 settlements concerning 3 nursing homes. During that period, pursuant to CRIPA, the Civil Rights Division issued findings letters regarding conditions in 7 facilities for persons with mental illness, 5 facilities for persons with developmental disabilities, and 11 nursing homes. Some examples of these investigations follow.

* On January 12, 2004, the U.S. Department of Justice’s Civil Rights Division and the State of Louisiana filed a complaint and consent decree in United States v. Louisiana (M.D. La.) regarding the Hammond and Pinecrest Developmental Centers. The action resolved an investigation into allegations of a pattern or practice of violations at the two facilities. Pinecrest and Hammond are the two largest state-owned and operated residential facilities in Louisiana serving persons with developmental disabilities. Staff at one of the facilities have been arrested for abuse such as kicking a resident, dragging him to his room, placing a blanket over his head, and hitting him. At the other facility, staff had left residents alone for long periods of time and when the residents were eventually found, they were found in appalling and unclean conditions. The Department of Justice’s Civil Rights Division and the State of Louisiana entered into a consent decree in which the State agreed to remedy the alleged constitutional deficiencies.

* On February 17, 2004, the Civil Rights Division filed a complaint and a consent decree in United States v. Breathitt County, Kentucky (E.D. Ky.) regarding Nim Henson Geriatric Center, a case concerning unconstitutional conditions at the county nursing home, including the use of inappropriate medications for an elderly population, unnecessary medical interventions such as feeding tubes, and residents with untreated bed sores. For example, during the Division’s investigation, the Division found that in many instances, residents’ medical records contained no clinical justification for their medications, and frequently certain medications appeared to be prescribed inappropriately. Often, powerful psychotropic medications were administered to patients based solely on nurses’ observations that they were “agitated,” and a high number of Nim Henson residents displayed symptoms consistent with many of the harmful side effects of harmful medication use, particularly muscular rigidity, swallowing difficulties, restricted speech and movement, and mental confusion. The consent decree contains remedial measures addressing these and all of the Division’s other findings of unconstitutional conditions at Nim Henson.

* In October 2001, the Civil Rights Division obtained the first court-ordered comprehensive community service plan for persons with developmental disabilities after President Bush signed the New Freedom Initiative (a domestic initiative to help Americans with disabilities by increasing access to assistive technologies, expanding educational opportunities, increasing the ability of Americans with disabilities to integrate into the workforce, and promoting increased access into daily community life). In 1997, the Division investigated all six of the residential facilities for persons with developmental disabilities operated by the Commonwealth of Puerto Rico. The Division found dire conditions at the institutions such as no running water, broken toilets, showers and sinks, as well as medication and food shortages. Many residents were found in filthy conditions and suffered serious injuries such as black eyes, deep cuts to the head, bruises, and significant weight loss. The Division responded quickly, filing suit and securing a series of agreements to remedy deficient conditions. The Division reached agreement on a comprehensive community-based service plan whereby the Commonwealth would create a community system to serve the residents with developmental disabilities in the most integrated setting. As a result, the Commonwealth closed its deficient institutions and created a good community system. Virtually all of the residents who had been institutionalized in dire conditions now live in clean, safe homes staffed by caring and involved staff. The Division has conducted several monitoring tours of community placements and programs. Most recently, the Commonwealth committed to increasing its mental health care for former residents of institutions now living in the community.

48. Prisoners on chain gangs. Chain gangs are employed by a minority of states, where their use has sparked controversy. However, the use of chain gangs is not per se unconstitutional.

49. The Bureau of Prisons does not employ chain gangs. While only a minority of states and some local jurisdictions employ chain gang work crews, one county in Arizona has attracted particular attention for its approach. Maricopa County, Arizona operates four chain gangs, two for adult males, one for females, and one for juveniles. Common duty for chain gang members is to bury indigent members of the community. In the past, federal authorities have in some instances taken measures to regulate state authorities who have employed chain gangs.

50. Some states have stopped using chain gangs for a variety of reasons, including safety concerns for inmates. Although Alabama was the first state to resurrect the practice in 1995, it ended its chain gangs only two years later. Inmate safety was a significant factor behind Alabama’s decision after a guard shot an inmate who attacked a fellow prisoner while they were chained together and the victim could not escape. Also, in 2002, the Alabama Supreme Court ruled that prison guards could be held liable for injuries suffered by a prisoner while on a chain gang.

51. One of the issues involved in the investigations by the Civil Rights Division of the Department of Justice into two Alabama prisons involved use of the “hitching post.” The Department of Justice concluded that Alabama’s systematic use of the hitching post constituted improper corporal punishment. Later, in Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court agreed with the petitioner and the United States (which participated as a “friend of the court”) that the use of the “hitching post” was, under the alleged circumstances, an unconstitutional practice. In that case, a hitching post referred to a metal bar located outdoors to which inmates were attached by means of mechanical restraints. The Court held that it is unconstitutional for prison officials to, with deliberate indifference to the health or safety of inmates, expose inmates to the “unnecessary and wanton infliction of pain.” Hope v. Pelzer, 536 U.S. 730, 737 (2002) (internal quotation marks omitted).

52. Adult aliens in immigration custody. The Department of Homeland Security continues to address allegations that arise about the treatment of aliens held in immigration detention. Within the Department of Homeland Security, the Bureau of Immigration and Customs Enforcement (ICE), Office of Detention and Removal Operations (DRO) detains approximately 19,000 aliens in Service Processing Centers, Contract Detention Facilities and local facilities through Inter-governmental Service Agreements (IGSA). ICE regularly meets at both the national and local levels with various non-governmental organizations (NGOs) (such as the American Immigration Lawyers Association, the American Bar Association, Catholic Charities, Las Americas) to address such allegations. A national NGO working group meets in Washington, D.C. at ICE Headquarters. ICE also regularly meets with consular officials to address allegations of mistreatment.

53. In a particularly noteworthy development since the Initial Report, in November 2000, the former Immigration and Naturalization Service (INS) promulgated the National Detention Standards (NDS). These 36 standards were the result of negotiations between the American Bar Association, the Department of Justice, the INS and other organizations involved in pro bono representation and advocacy for immigration detainees. The NDS provides policy and procedures for detention operations. Previously, policies governing detention operations were not consolidated in one location, but were instead sent to field officers via periodic memoranda containing guidance and policy statements. As a result, local differences among INS detention offices were possible.

54. The NDS are comprehensive, encompassing areas from legal access to religious and medical services, marriage requests to recreation. The four legal access standards concern visitation, access to legal materials, telephone access, and group presentations on legal rights. In July 2003, the 37th standard was introduced for Staff-Detainee Communication, which is discussed further at paragraph 137. Effective March 2003, the Office of Detention and Removal Operations became a division of ICE within the Department of Homeland Security. Effective September 2004, the Detainee Transfer standard was added. The 38 NDS can be accessed by the public and other interested parties via the Internet at http://www.ice.gov/graphics/dro/opsmanual/index.htm.

55. ICE is committed to ensuring that the conditions of confinement for aliens detained pursuant to ICE authority meet or exceed the National Detention Standards. These standards are based on current ICE detention policies, Bureau of Prisons’ Program Statements and the widely accepted American Correctional Association Standards for Adult Local Detention Facilities, but are tailored to serve the unique needs of ICE detainees. All ICE facilities are required to comply with such standards. Additionally, wherever possible, ICE works with private contract facilities and state, local and federal government agencies which are holding aliens under Intergovernmental Service Agreements to ensure that non-ICE facilities comply with ICE’s detention standards.

56. On January 24, 2002, DRO completed and implemented the Detention Management Control Program (DMCP) to operational components at all levels. The DMCP replaced the outdated INS Jail Inspection Program. The purpose of the DMCP is to prescribe policies, standards, and procedures for ICE detention operations and to ensure detention facilities are operated in a safe, secure and humane condition for both detainees and staff. The DMCP consists of a series of events designed to ensure that reviews/inspections of detention facilities are conducted in a uniform manner.

57. All Service P