U.S. Department of State Initial Re

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Subject: U.S. Department of State Initial Report of the United States of America to the UN Committee Against Torture Submitted by the United States of America to the Committee Against Torture, October 15, 1999 

U.S. Department of State
Initial Report of the United States of America to the UN Committee Against
Torture
Submitted by the United States of America to the Committee Against Torture,
October 15, 1999 
 Harold Hongju Koh, Assistant Secretary of State
for Democracy, Human Rights and Labor 
and James E. Castello, Associate Deputy Attorney General
On-the-Record Briefing on the Initial Report of the United States of America
to the UN Committee Against Torture
As released by the Office of the Spokesman
Washington, DC, October 15, 1999  

 MS. RESIDE: Thank you for your patience. Assistant Secretary for Democracy,
Human Rights and Labor Harold Hongju Koh and Associate Deputy Attorney
General James Castello are here today to brief you on the Initial Report of
the United States of America to the UN Committee Against Torture.
Following Mr. Koh's opening statement, he and Mr. Castello will have about
20 minutes to respond to your questions. Thank you.

ASSISTANT SECRETARY KOH: Thank you. I am pleased to introduce the initial
report prepared by the United States concerning its compliance with the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. The report was submitted today in Geneva to the Committee
Against Torture established by that Convention. I would like to welcome my
friend and colleague, James Castello, Associate Deputy Attorney General, who
has joined me to help answer your questions today.

The U.S. played a leading role in developing and drafting the Convention
Against Torture, signing it in 1992. In October 1994, the U.S. ratified the
Convention, which entered into force on November 20th, 1994. Under its
terms, the States Parties are required to report to the Committee on their
efforts to comply with their obligations under the Convention. Written to UN
specifications, this report was prepared through extensive collaborative
efforts of the U.S. Departments of State and Justice with input from other
Executive Branch departments and agencies, as well as non-governmental
organizations and concerned individuals.

In addition to my colleagues at Justice and other federal agencies, I would
like to thank Assistant Legal Advisor Andre Surena and Chris Camponovo of
the Legal Adviser's Office of Human Rights and Refugees, and the staff of my
own Bureau of Democracy, Human Rights and Labor for the countless hours they
expended in order to make this report possible. The report represents not
only the U.S. Government's strong commitment to fulfilling its obligations
under the convention, but a clear and determined commitment to combating
torture no matter where it may occur.

The right to be free from torture is an indelible element of the American
experience. Our country was founded by people who sought refuge from severe
governmental repression and persecution and who, as a consequence, insisted
that a prohibition against the use of cruel or unusual punishment be placed
into the Bill of Rights. As our report today notes, "Torture is [now]
prohibited by law throughout the United States. It is categorically
denounced as a matter of policy and as a tool of state authority. In every
instance, torture is a criminal offense. No official of the government,
federal, state or local, civilian or military, is authorized to commit or to
instruct anyone else to commit torture. Nor may any official condone or
tolerate torture in any form. No exceptional circumstances may be invoked as
a justification for torture."

It would be a mistake, however, to regard opposition to torture as a
uniquely American concept. Article 5 of the Universal Declaration of Human
Rights provides that "[n]o one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment." Thus, the right to be free
from torture is a universally recognized human right profoundly inter-linked
with other human rights. For example, eliminating the use of torture not
only reinforces individual dignity and physical health but also protects
freedom of speech, expression, assembly, religion and the press. Likewise,
making illegal the practice of securing criminal confessions through torture
not only establishes and maintains the credibility of the judicial system
but also protects the internationally recognized right of due process. For
these reasons, no government can justify the use of torture or other cruel
and unusual punishments as a means of policing or protecting its citizens. 

Within the United States, as we fully acknowledge in this report, there
continue to be areas of concern, contention and criticism. But we note that
torture does not occur in the United States, except in aberrational
situations and never as matter of policy. When it does, it constitutes a
serious criminal offense, subjecting the perpetrators to prosecution and
enlisting the victims to various remedies, including rehabilitation and
compensation. Any act falling within the Convention's definition of torture
is clearly illegal and prosecutable everywhere in the country. We
acknowledge areas where we must work harder because we believe the first
step is to identify torture wherever it exists. We believe that this report
is both comprehensive and candid. We have accurately and thoroughly exposed
our strengths and failings and call upon other signatory states, as well as
the entire international community, to do the same.

One of the cornerstones of our commitment to promoting human rights and
ending torture is the Annual Country Reports on Human Rights, now in their
27th year. These reports, which we submit to Congress every February,
examine how governments around the world adhere to international human
rights standards as embodied in the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights, the Convention
Against Torture and Other International Human Rights Standards. Every
individual country report examines whether a country has committed torture
or other cruel, inhuman and degrading treatment or punishment. It is a
hallmark of our country reports that they openly report on torture wherever
it occurs. Our experience demonstrates that such honest reporting helps to
curtail abusive practices in many countries.

At the UN Human Rights Commission each spring and at the UN General Assembly
each fall, we support countries' specific resolutions that mention cases of
torture and thematic resolutions that support the work of the UN Special
Rapporteur on Torture. We urge all countries to cooperate fully with the
Rapporteur, underscoring how vitally important it is that the Rapporteur be
independent and have full access to human rights activists and abuse victims
with full safeguards protecting these sources. 

Moreover, where there is evidence of torture we demand an accounting.
Torturers must be shown that they cannot act with impunity; and thus, for
example, the U.S. took the lead in pushing for the formation of an
international criminal tribunal on The Former Yugoslavia and Rwanda to bring
to justice those responsible for torture and other crimes. We've worked very
closely with the Tribunal for The Former Yugoslavia to document a wide array
of human rights abuses, war crimes and crimes against humanity, including
torture in Kosovo. 

We are also seeking to establish mechanisms of accountability for the Khmer
Rouge and the current regime in Iraq and we support the work of truth
commissions the world over, including the Truth and Reconciliation
Commission in South Africa, as well as those in Guatemala and El Salvador.
Most recently, the U.S. supported the establishment by the UN of an
international commission of inquiry to look into the tragic events which
took place in East Timor in connection with the recent voting there.

But demanding justice is only half the battle. In addition to our firm
commitment to ending torture, we're committing to help individuals who have
suffered from it. Both the Clinton Administration and Congress share these
goals. In 1980, the Justice Department supported a victim's request for a
civil remedy against torture in the landmark case of Filatarga v.
Pena-Irala. In 1995, this Administration reiterated that support in the case
of Kadic v. Karadzic. In 1992, Congress passed the Torture Victims
Protection Act and, as President Clinton said in October 1998 when he signed
the Torture Victims Relief Act, the U.S. will continue its efforts to shine
a spotlight on this horrible practice wherever it occurs and we will do all
we can to bring it to an end. The U.S. is the largest single donor to the UN
Voluntary Fund on Torture, providing $3 million in Fiscal Year 99, an
increase in $1.5 million over the previous year. As of August '99, the total
U.S. contribution to that fund was $12.6 million.

We also strive to help torture survivors in a variety of ways, ranging from
protecting them from returning to countries where there is a substantial
risk of torture to providing technical assistance to victim treatment
facilities.

We are committed to protecting those at risk of torture by ensuring that, as
is stipulated by the Convention Against Torture, they are not returned to
countries where they are more likely than not to suffer torture. In fact, in
response to legislation passed last year, the Department of State and the
Immigration and Naturalization Service promulgated regulations establishing
procedures to ensure that persons in the U.S. are not returned to face
likely torture.

The Department of Justice also has established a working group dedicated to
identifying and taking appropriate action--whether prosecution, extradition
or deportation--against alleged torturers who have sought to use the U.S. to
hide from responsibility for their crimes.

We also work to ensure that the U.S. military and police training do not
benefit known human rights violators and that we do not sell US-produced
equipment to those who commit such abuses. The Administration's commitment
to this principle was reinforced by recent legislation requiring increased
attention to the record of security force units receiving our assistance.

But this is not merely a matter of enforcing the law but, rather, one of
Administration policy. We have worked hard to ensure that our embassies
understand the new provisions of the Foreign Operations and DOD
Appropriations Act and that each embassy has a plan in place to ensure that
it will comply with the law.

In sum, we believe that our efforts against torture give hope and
reaffirmation to those who seek human rights and democracy. We believe that
this support reflects and reinforces our national commitment to combating
the practice of torture, a commitment that helps uphold our most cherished
American values.

Thank you. We are ready to take any questions you might have.

QUESTION: This is the first such report. The answer to my question might be
here but I didn't see it. Are you obliged to file annual reports to this UN
committee?

ASSISTANT SECRETARY KOH: We are obliged to file periodic reports.

QUESTION:Periodic?

ASSISTANT SECRETARY KOH: This is the first report that we are submitting. 

QUESTION:In your statement just now, you didn't mention the capital
punishment at all. In the body of this report, it is given one paragraph of
two sentences and, yet--because you say that you don't believe that capital
punishment is covered by the Convention. And yet there is an entire annex
devoted to capital punishment. I think it's the third one.

I am just wondering, how sensitive are you to criticism from--I note that
there has already been some, a lone protester outside the C Street entrance
handing out a counter report to this, which talks mainly about--deals mainly
with the capital punishment issue. So how sensitive are you to criticism on
the death penalty?

ASSISTANT SECRETARY KOH: Well, as you know, the Administration--the death
penalty is legal in the United States as determined by the U.S. Supreme
Court in a range of cases and is also consistent with our commitments under
the International Covenant on Civil and Political Rights. As a result,
lawful administration of the death penalty does not constitute torture for
purposes of the Torture Convention and, therefore, we feel no obligation to
report on it.

QUESTION:So why this annex?

ASSISTANT SECRETARY KOH: The point is that it seems to us that there are
practices which are of interest and concern and on which we thought
questions would be raised and we thought it was therefore appropriate to
address those questions in the context of the annex, although not in the
context of the report itself. 

There is a lot of misunderstanding worldwide about how our death penalty is
conducted. The term "capital punishment" can, in some countries which don't
follow due process rules, constitute arbitrary or summary execution. In our
country, it's done according to rigorous legal standards reviewed at every
conceivable level by various courts, up to and including our Supreme Court;
and, therefore, part of the purpose of this report is educational, letting
other countries know how we do what we do and the painstaking efforts that
we take to make sure that human rights violations don't occur as a result.

I think if there is one strong impression that any objective reader would
get from reading this report is that we in the United States have a lot of
laws, procedures and institutions designed to deal with these issues. And I
think when I regularly meet with government officials from other countries
they tend to make statements about, "What about your own practice of X?" And
it's easier for me now to simply say, "If you look at our report which has
been submitted to the Committee Against Torture, you will see that these are
not things that are done without very careful, rigorous, due process
standards by government officials acting under the rule of law."

QUESTION:Let me try one, just a procedural quickie. You are obliged to
report on torture but is your--you choose to--the United States Government
chooses to decide that instances of police abuse, excessive use of force and
even brutality, fall under that definition--or are those similar phrases
suggested to you by the UN Committee, by the UN group? Do you know where I'm
going? 

Because, I mean, I'd ask the guy from the Justice Department if the Miranda
rule is being upheld here because a lot of people think the Miranda rule
forces--without it, confessions are forced. So I don't know how deeply
you're prepared to get into--and dealing with the rest of the world --on
practices in the United States in which there is great division whether it's
repression or not. I mean, you know, Rodney King is clear but I'll bet there
is still police officers who don't think they abused Rodney King.

ASSISTANT SECRETARY KOH: Well, it's a good question and I think it's an
important one. The term "torture, cruel, inhuman or degrading treatment" is
an international term of art well known in human rights laws. It's the one
that's used around the world. In the United States, traditionally we address
this under the rubric of cruel and unusual punishments.

Now, the question in the domestic setting has always been: Does that cruel
and unusual punishments extend only to punishments that are imposed by
courts at the end of convictions or does it also include things that occur
prior or earlier in the pre-trial process?

What we have tried to do here is to understand our domestic practice in
light of the international standards, and what we tried to do is answer in a
comprehensive and candid way what we think are questions that would likely
be asked by those outside our system but who subscribe to the same
international standards. And that means that the exact questions that you
raise about what rights are given to people who are giving confessions,
perhaps under some measure of governmental supervision, to what extent are
those being done consistent with this convention. You know, interested
readers want to know, and that's what we've tried to provide here.

QUESTION: But you're breaking out your definition--you're interpreting
torture. You've-- is the point to--

ASSISTANT SECRETARY KOH: We've erred on the side of completeness.

QUESTION: Oh, I know, and it's very--I understand the principles of the U.S.
system that are being upheld here and you're probing probably further than
any country would probe. But I'm just asking, is it up to--has the United
States decided --do you folks, in making this report, make a judgment on
your own what is torture and expand that word to mean police mishandling,
even forced--even denying a person--of someone not even--who hasn't even
been charged, denying him access to a lawyer, keeping him and not letting
him sleep, get adequate sleep? We can go on with this kind of stuff. There
are not enough people in the U.S. Government to put together a report like
that. 

ASSISTANT SECRETARY KOH: No, no, I would not focus exclusively on the world
"torture." We are obliged to report on torture, cruel, inhuman or degrading
punishments or treatment. And the term "degrading punishment or treatment"
is a very broad phrase and, as a result, we give a broad reporting. 

Now, there are any number of legitimate practices that are done by
government officials which have to be monitored carefully to make sure that
they don't cross the line into cruel, inhuman or degrading treatment or
worse. And that's what we tried to do is to report both on the measures we
take to avoid it, the measures we take to address it if it occurs, and
really, also just in an explanatory way, lay out the structure of American
law, which is designed to internalize the norm against torture in the way we
do business. When I think we say Americans find torture abhorrent to their
very notion of themselves as Americans, it's a way of saying that, in a
legal way, we've structured our legal system to make sure that torture is
banned in every conceivable part of our standard operating procedures for
the people who do the work of our government.

QUESTION:But not the--is it a federal crime --torture?

ASSISTANT SECRETARY KOH: Yes. Acts that constitute torture constitute a
federal crime. And we have, as a result of ratifying the Convention Against
Torture, also followed a number of implementing statutes. 

James, I don't know if you want to comment more on this from the Justice
Department perspective.

MR. CASTELLO: No, I'd leave it primarily to the State Department to
determine the question you've asked, which is what range of domestic
protections are actually subsumed within the international undertakings
under the Convention. I guess, just to follow up on you last question though
about federal laws, the report lays out, I think, that in the preponderance
of cases, the kind of behavior that I think most people would associate with
torture would be criminalized under state law.

QUESTION:Absolutely, but not under federal law?

MR. CASTELLO: In most cases it would not be under federal law, though there
are lots of other federal protections.

QUESTION:You're not making the suggestion that there should be a federal
law, are you?

MR. CASTELLO: No.

QUESTION: Mr. Castello, could I--as long as you're there--I'd like to ask a
couple of questions related to this and to the recent case of Hani al-Sayegh
and his being sent back to Saudi Arabia. Is this the Convention under which
the Justice Department and the State Department had discussions with the
government of Saudi Arabia when we were told in the last few weeks that the
U.S. Government has been assured that there won't be any violations or any
torture--any violations against torture in his case?

MR. CASTELLO: Yes. It would be under Article 3 of this Convention.

QUESTION: And then I would ask the-- to me, a related question--capital
punishment was mentioned before. In Saudi Arabia, capital punishment is done
with beheading; in fact, there was one today--at least there's a story of
one on the wires today. Is that in sync or does that violate any of the U.S.
norms in this regard?

MR. CASTELLO: No, I don't believe it would for reasons that Mr. Koh has
indicated. 

ASSISTANT SECRETARY KOH: In the al-Sayegh case, the Attorney General had to
make a determination whether it's more likely than not that someone who
would be returned would face torture or cruel, inhuman or degrading
treatment as defined in this Convention. And there is a very detailed and
elaborate process which you've heard about in which that issue was discussed
and addressed. And the Attorney General made that determination, which she
was legally obliged to do.

QUESTION:A couple of weeks ago, a human rights group--I think Amnesty--put
out a report saying that the U.S. Immigration and Naturalization Service was
acting with potential deportees in ways that, if not amounting to torture,
certainly amounted to an abuse of their human rights. They were--for
example, they were thrown in with hardened criminals, kept essentially
incommunicado, often denied counsel and other things, and kept arbitrarily
for long periods of time. Have you seen that report? How do you respond to it?

ASSISTANT SECRETARY KOH: No, I haven't seen that report. I am, myself,
someone who came from the community of those who represented aliens and
refugees in detention and this is something that I personally monitor very
closely. 

I mean, I think the key point in our report is to say that the U.S.
Government has elaborate procedures that we try to monitor and apply as much
as possible. Often, when these abuses are called--what are considered to be
violations that are called into question, the question is, is this action
which is inconsistent with the rules that have been laid down, in which case
those rules need to be better enforced.

I think one thing I've noticed just generically about reports about U.S.
practices on issues such as encompassed in the scope of our report is often
they are reports which herald their report about torture in the United
States. But when you look through the files that were examined, most of them
are our own Justice Department prosecutorial records.

What that demonstrates is that these activities are being pursued or being
prosecuted and that the issues are being thoroughly investigated by our law
enforcement authorities, as they should be.

QUESTION:Since INS comes under the Justice Department, has your Department
looked into these allegations?

MR. CASTELLO: Well, I am not personally familiar with the report that you
indicated, but certainly the conditions of detention are something that the
Department does worry a great deal about. Not only do they investigate
allegations of mistreatment in facilities, but we also have our own internal
standards which have been developed over the year and which are in the
process of evolution right now to improve the standards for detention.

One of the problems we face is that we don't have enough of our own
facilities to house all of the detainees under the immigration system. I
would say about 50 percent of the detainees under the INS are housed in
local jails or state facilities with which we have contractual arrangements.
So developing and implementing standards for those facilities that we
actually don't control is a longer process and we have a process in place
right now to improve the standards even for the contractual facilities, and
that is something we are certainly concerned about and working on.

QUESTION:On the Saudi question, apart from the beheading issue, of course,
the issue in Saudi Arabia is that these executions take place in public--and
does that not qualify them as degrading? Is this not an issue at all? Is
this something you looked at when this case came up?

ASSISTANT SECRETARY KOH: Well, I think it is an overall assessment of what
the due process situation was and what the likelihood was that this legal
definition of torture was going to be passed upon or violated by a return of
the suspect to the country of origin. And the determination that was made by
the Attorney General, based on all the evidence, was that it was more likely
than not that torture would not occur. And that definition was very
carefully examined and a lot of different factors went into the determination.

QUESTION:More likely than not? I hate to be--that's the standard?

ASSISTANT SECRETARY KOH: That's the legal standard and that's been--

QUESTION:More likely than not is the legal standard?

ASSISTANT SECRETARY KOH: By the way, I should say that that standard is
embodied in the Convention which we have ratified¹ Article 3 prevents the
forcible return of an individual to a country where he or she will more
likely than not be tortured. So that is what the international community,
118 State Parties, have agreed upon.

QUESTION: t's not that they have a torture system; it is that that
individual, trying not to be deported, has to prove, doesn't he, that if he
personally went back that the system would strike at him? You send people
back all the time to all sorts of brutal regimes. In here, you score
patterns of brutality. In Philadelphia, I believe, in Stubenville, Ohio,
patterns of brutality. And you obviously deplore them as sort of offshoots
of torture, of brutality, of indecent treatment. 

But an individual will be deported to the most repressive regimes, won't he,
unless he can prove that they are looking for him, that they are out to get
him? We send people back all the time to Haiti and all sorts of places.

ASSISTANT SECRETARY KOH: Well, look, we do two things: we look at a country
and its practices; we also look at a country and its laws and procedures.
And based on that, you have to make an assessment of whether it's more
likely than not that a particular individual, when sent back, will be
tortured or not. For example, I believe that if someone is requested to be
returned to the United States, that there is almost no circumstance I would
imagine in which that's more likely than not to be true.

QUESTION: Of course.

ASSISTANT SECRETARY KOH: It is not a function of how many instances you
quote, but it is a function of the extent to which the legal system in that
country internalizes and provides the protections that are guaranteed under
the Torture Convention. And I think that is what you have to do on a
case-by-case basis involving both countries and individuals.

We take that obligation incredibly seriously. I've spent much of my career
representing individuals who were seeking not to be returned to various
kinds of countries for fear of persecution. And, by the way, that's a
separate basis for either withholding of deportation or seeking of asylum.

But what we are talking about here is whether there is a violation of this
treaty because someone is being returned to a place in which it is more
likely than not to be tortured, and the Attorney General made that
determination in the case that we are discussing. 

QUESTION:And it is an individualized assessment?

ASSISTANT SECRETARY KOH: It is an individualized assessment.

QUESTION:First, a housekeeping question. Do you know, is there a figure on
how many people are not deported to their home countries because they might
face torture, are not deported from the United States? Is there an annual
figure or a figure last year? I haven't noticed it in this report, if it's
there. 

And, second 

ASSISTANT SECRETARY KOH: We don't have that number. And the fact of the
matter is, when people are not deported, there are often multiple grounds
raised. So it might be even hard to distill that factor for you.

QUESTION:Do you have any idea, any estimate? Thousands, hundreds or any
countries you want to name? And then I have another question. 

ASSISTANT SECRETARY KOH: Probably the number that we could get for you is
how many people are able to claim political asylum or withholding of
deportation in the United States in a given year. Then you might extrapolate
from that some subset that is claiming it is on this ground, but that is
probably about as much as we've got. We'll get the best information for you
that we can get.

QUESTION:Good. Now, the other question I wanted to ask for you is, you know,
however aberrant you might see it, what do things like the Rodney King and
the Abner Louima case--what do they tell people overseas about the United
States?

ASSISTANT SECRETARY KOH: I think they tell people overseas that we are
seeking a more perfect union; that we don't have a perfect record; and that
we move aggressively to punish and prevent and deter this kind of practice.
We're human beings here, operating in a system of human rights. What we are
aspiring to is perfection; what we achieve is something less. 

But I think the way that we use our own human rights record to send strong
messages to other countries is to show that we're honest; that we're candid
about our failings; that we don't intend to let situations like this recur
again; and that we've taken steps on an institutional level to make sure
that they're addressed. We also have to focus on making sure that those
people who violate on an aberrational basis are punished. And that's, I
think, what sets our country apart from others. 

Thank you.

¹Article 3 of the Convention establishes the standard of proof as "where
there are substantial grounds for believing that [the person] would be in
danger of being subjected to torture." The United States Senate's resolution
of ratification contains the understanding that this phrase means "if it is
more likely than not that [the person] would be tortured."

(The briefing concluded at 12:40 P.M.)

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