PROMISES TO KEEP

By William Fisher

“Diplomatic assurances” -- promises not to torture -- are sought by a government when it is transferring a detainee to the custody of another government. In the past, such assurances have often proved worthless; they have come from countries that have a long history of brutality against prisoners.

And, according to a new report from the Columbia University law school’s Human Rights Clinic, the U.S. is continuing to follow the same protocol. The result may well be further prisoner abuse because the government’s approach to transfers lacks institutional safeguards –“transparency, judicial review and systematic monitoring.”

For that reason, many human rights experts argue that a crucial part of the “war on terror” is being waged with “blissful ignorance.”

The report – “Promises to Keep” – says the U.S. may send a terror suspect to another country with a supposed promise that the detainee will be treated humanely. “Not surprisingly, it often doesn’t work out that way. The government knows this, and yet it’s still trying to move detainees out of the country.”

The report was written by Naureen Shah, a counterterrorism policy expert and lawyer at Columbia.

At his 2009 confirmation hearing to become director of the Central Intelligence Agency (CIA), Leon Panetta told Congress that, “using renditions, we may very well direct individuals to third countries.” Referring to past cases where assurances were used, Panetta said: “I will seek the same kind of assurances that they will not be treated inhumanely. I intend to use the State Department to assure that those assurances are, in fact, implemented and stood by those countries.”

But that is precisely the procedure that has been followed since the Clinton Administration – and which has produced some of the most heinous examples of torture and even death in detention.

The report notes that the Obama administration “initially signaled an interest in reforming its transfer and assurances practices. An interagency task force established in January 2009 recommended better monitoring and State Department involvement in evaluating assurances in all cases.” But it adds that “the government has not announced any steps to implement its recommendations.”

It notes that, “as this report went to print, the offices of Inspector General of the State Department, Department of Homeland Security and Department of Defense were in the process of reviewing assurances practice.”

While the government has suggested that it has wide discretion over how and when to use assurances, as well as whether to disclose that use, “it has provided next to no information about its minimum standards and
protocols for negotiating assurances, monitoring returned individuals and responding to allegations of abuse.”

“It has refused to acknowledge past breaches of assurances or provide redress to victims. In litigation, it has argued that disclosure would jeopardize US foreign policy interests and the government’s ability to negotiate assurances in future cases,” the report adds.

The report says the “strongest message” from the 2010 Wikileaks situation is that “US diplomats take protection against torture seriously but that individual efforts are not sufficient.”

It notes that “from the trickle of cables released on Wikileaks, more details are emerging, documenting both the scrupulous efforts of individual diplomats and the specific failures of particular assurances. While more details of specific cases will certainly emerge, thus far the leaks simply reinforce the need for clear policies and broader transparency to ensure appropriate vetting and accountability.”

Several cables released in December 2010 reference the efforts by the US to transfer detainees from Guantanamo, the report says. “The cables show how the US resisted Chinese and Tunisian diplomatic pressure to repatriate their nationals because of concerns that the detainees would be mistreated.”

“The US even had to resist Chinese and Tunisian pressures on other governments not to accept their nationals for resettlement,” the report says, adding, “One cable shows the US ambassador to Tunisia acknowledging credible reports that an already repatriated Tunisian national was mistreated. The ambassador also rejects Tunisia’s claims that the International Committee of the Red Cross had access to Tunisian prisons.”

Other leaked cables reveal that US diplomats offered financial and political incentives to foreign governments to safely resettle Guantanamo detainees, including a rejected “incentive package” of USD $3 million and promises of US help in obtaining International Monetary Fund assistance, the report claims.

The potential recipient governments appeared most concerned about public reaction in their own countries or foreign policy considerations such as risking China’s ire for resettling its nationals held at Guantanamo. But “none expressed concern about judicial review or public scrutiny of the assurances.”

The report notes that leading human rights advocates have condemned the practice of relying on assurances. “According to them, assurances are inherently unreliable in countries that have already demonstrated their willingness to torture in violation of local and international law.”

But the report concludes that “whatever the doubts about their ultimate effectiveness…there are clearly better and worse ways of employing assurances: they can serve as the cynical, legalistic veneer to a conscious abdication of responsibility, or a sincere effort to diminish the likelihood of an individual’s mistreatment.”

“From the past decade, there is evidence of the cynical, the sincere and much that falls in between, where mistakes or incompetence make the motives irrelevant,” the report says.

“In their first known use after 9/11, Sweden obtained vague assurances from Egypt that it would respect the rights of two asylum seekers returned to Egypt by a team of masked US commandos. Swedish diplomats waited five weeks before checking on the detainees and, then, did so in the presence of prison officials,” the report declares.

“For the US the first government acknowledgment of assurances after 9/11 was made to deflect responsibility for the alleged torture of Maher Arar, a Canadian citizen whom the US transferred to Syria. Years later, it emerged that the State Department had dismissed any concerns about the transfer without bothering to review the conditions.”

In the Arar case, the State Department failed to play any significant role, the report says. In summary proceedings, Arar, a Canadian citizen, was removed from the US and ultimately transferred to the custody of Syrian intelligence officials, who tortured Arar despite providing assurances to the US government.

Though the State Department denied involvement in the case, then-Deputy Secretary of State Richard Armitage acknowledged that he had a “brief—only two to three minutes, and casual” conversation about Arar with then-Deputy Attorney General Larry Thompson, who asked whether he had any “foreign policy objections” to removing Arar to Syria. According to Armitage, his “only concern was whether Mr. Arar was a United States citizen,” adding that “Syria was helping us with Al Qaeda.”

And in the 2006 extradition of Kulbir Singh Barapind, a Sikh separatist who feared torture by local police, by whom he had previously been tortured, the “US State Department made passing reference to an earlier case where there had been credible reports of torture.“ The Department was “unable authoritatively to confirm” whether the individuals were tortured.

“The State Department’s analysis did not address whether the police officers who previously tortured Barapind still held positions of authority or whether the central government authorities giving the assurances had the ability to supervise or control the state police. Instead, the State Department relied on the existence of Indian laws prohibiting torture—laws that were in place when Barapind was previously tortured,” the report declared.

The report said, “These examples could be treated as unfortunate gaffes committed by pressured officials operating in a difficult environment without clear instructions. Both Canada and Sweden were forced to respond robustly. A public inquiry in Canada led the government to apologize to Arar and pay CAD $10.5 million in damages. The early disclosures have led US allies to expose the practice to public debate and judicial scrutiny.”

But the United States has never publicly acknowledged fault or a need to improve, the report notes, adding:

“The US continues to maintain broad secrecy about its current practice while insisting that others trust it to respect the law and do the right thing. The US government hints publicly at improvements in internal processes while claiming that frank disclosure and judicial review—now extensive in Europe and Canada—are unnecessary and counterproductive.

Disclosing the process or text of assurances would harm diplomatic relations, according to US officials, and judicial review would undermine the ability of the US government to ‘speak with one voice,’ the report says.

Diplomatic assurances are also used in some immigration cases. In those cases, the US does not acknowledge the right of the individual to challenge the assurances, the report says.

In one immigration case, the report details, the government terminated the “deferral of removal” of Sami Khouzam, a Coptic Christian facing persecution in Egypt, on the basis of Egyptian assurances it received in 2004. But it did not inform Khouzam of the termination of his status—and his loss of protection—until May 2007, three days before he was arrested and detained in preparation for imminent removal. In 2008, the Third Circuit Court of Appeals held that by failing to provide Khouzam any opportunity to challenge his removal, the government violated his due process rights.

Rigorous and systematic State Department scrutiny is a crucial safeguard, particularly in the absence of judicial review, the report suggests.

“At least since 2005, the US government has solicited assurances of humane treatment in the transfer of every individual out of Guantanamo. It has declined to repatriate detainees to home countries due to their records on torture or reports of mistreatment to previously returned detainees, including China, Syria, Tunisia and Uzbekistan. In the case of China and Tunisia, it has resisted intense diplomatic pressure by foreign diplomats to repatriate their nationals,” the report notes, but adds:

“Publicly, the government has refused to acknowledge cases of breached assurances, including its failure to ensure effective post-return monitoring, or foreclose the option of repatriating nationals to home countries with records of torture. This leaves the 33 Guantanamo detainees who have been cleared for release but who face such repatriation in limbo.”

“Even as the government seeks to negotiate their resettlement in safe third countries, in courts, it has argued that its authority to repatriate them is absolute and unfettered by judicial review, as long as it declares the transfer compatible with US policy against torture,” the report says.

In July 2010, the US Supreme Court acceded to government arguments against judicial review, refusing to block the transfers of two Algerian detainees who feared mistreatment by government authorities or extremists. UN experts Manfred Nowak and Martin Scheinin condemned the decision, saying they were “extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin.”

“This could become the first involuntary transfers of Guantanamo detainees of the Obama administration,” the UN experts said. “While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.”

Individuals picked up by US forces in Afghanistan face abuse or prolonged detention without trial when transferred to Afghan custody or repatriated home. US transfers in Afghanistan occur in various contexts: short-term US detention and transfer to Afghan intelligence; transfers of Afghan nationals held for longer periods at US-run facilities; and possible repatriations of non-Afghan nationals.

The US International Security Assistance Force (ISAF) transfers apprehended individuals to the Afghan intelligence agency National Directorate of Security (NDS), which is notorious for abuse. In 2007, the US joined Canada, the UK, the Netherlands, Norway and Denmark in signing an exchange of letters with the Afghan government intended to establish a common approach to these “battlefield transfers.” But the UK and Canada have both experienced problems with monitoring the treatment of transferred detainees, and there are credible reports that torture has occurred on a large scale.

As of winter 2010, the US was pursuing a bilateral agreement with the Afghan government about a new monitoring arrangement, expected to be in place within months, but the details were unknown.

USFOR-A (non-ISAF US forces) may hold individuals detained by its ISAF forces for up to 14 days. US authorities assess whether the individuals should be released, transferred to Afghan authorities or sent to the US detention facility at Parwan, which was opened in 2009 to replace the Bagram Theater Internment Facility.

At present, the report says, there are about 1,000 detainees at Parwan. “As the US prepares to transfer the Parwan facility to Afghan authorities in 2011, detainees there face the prospect of prolonged pre-trial detention and the possibility of unfair trials, given the poor condition of the Afghan criminal justice system,” the report warns, adding: “The 50 or fewer non-Afghan nationals at Parwan may be repatriated to their home countries or held in some other US facility in Afghanistan—US plans, and the role of assurances, are unknown.”

The US has also conducted renditions—transfers outside of legal process— but the frequency of these practices, their legal basis and the role of assurances is unclear. The US has conducted renditions to justice,” or kidnappings for the purpose of delivering individuals to criminal prosecution in foreign countries since before 9/11.

Former CIA official Michael Scheuer told Congress in 2007 that under the Clinton administration, the US sought assurances that each foreign government would treat captured al-Qaeda “fighters” according to “its own laws.” But according to Scheuer, “[t]here [were] no qualms at all about sending people to Cairo and kind of joking up our sleeves about what would happen to those people in Cairo—Egyptian prison.”

The US has also conducted, directed or assisted in “extraordinary renditions” -- transferring individuals without legal process for the purpose of interrogation or detention. Individuals have been held in secret US-run facilities, delivered to foreign authorities, or held in camps ostensibly run by foreign authorities but directed and funded by the US government, the report notes.

Key human rights experts and tribunals have expressed skepticism about the reliability of assurances, and articulated circumstances under which they should not be used. “But this non-categorical approach has left the door open to experimentation, including by the UK and Canada, which, like the US, have used assurances in deportations and transfers in Afghanistan. Their experiences demonstrate both the persistent deficiencies of assurances and the feasibility of better practice by the US,” the report says.

It notes that countries have long used assurances in extradition and related contexts, albeit more commonly in the context of guarantees against imposition of the death penalty. “In the context of torture, human rights fact-finding and monitoring bodies have long sought assurances from governments that detainees they visit and interview will not later be abused in retaliation,” it says.

These practices may partially explain why key human rights experts and tribunals initially accepted and even encouraged the use of assurances against torture. For instance, in 1996, then-Special Rapportuer on Torture Nigel Rodley encouraged Canada to seek assurances if it insisted on deporting a failed asylum-seeker to Algeria, calling it “perfectly appropriate and not uncommon.” In contrast, the European Court of Human Rights rejected assurances against torture in a 1996 case, Chahal v. UK, based on a scrutinizing assessment of their reliability.

By 2004, a series of revelations about the “global spider’s web,” as European Parliament member Dick Marty put it in a 2006 report, of US-directed renditions and torture—including the role of assurances— “had recast the debate from the question of assurances’ effectiveness to whether they should be rejected on principle,” the report noted.

In 2005, UN High Commissioner on Human Rights Louise Arbour indicted assurances as “threaten[ing] to empty international human rights law of its content.”

According to Arbour: “Diplomatic assurances basically create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring regime for a selected few and ignoring the systemic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments.”

Arbour’s position mirrored the emerging perspective of major human rights organizations, the report says. While some advocates privately debated whether to suggest basic requirements for reliable assurances, others insisted that such a position would undermine the advocacy message that assurances should be rejected wholesale—the “reject rather than regulate” position.

Key human rights organizations continue to urge governments to abandon the concept of assurances altogether, emphasizing, as Amnesty International put it in a 2010 report, that the international human rights system is “fundamentally undermined when states seek to circumvent it with non-binding, bilateral promises not to torture.”

To date, no coalition of human rights groups has reached consensus on guidelines for assurances, nor have UN or Council of Europe bodies.

As then-Special Rapporteur on Torture Theo Van Boven emphasized in a 2004 report to the UN General Assembly, specific guarantees are critical to ensuring that diplomatic assurances are not “empty gestures.”

Van Boven recommended that safeguards “explicitly included in the assurances to be obtained” reflect international human rights norms and standards, including: prompt access to a lawyer; recording of all interrogation sessions and of the identity of all persons present; prompt and independent medical examination; and forbidding incommunicado detention or detention at undisclosed places.

Transparency in Decision-Making: Lack of transparency casts a pall on assurances-based transfers, prompting skepticism. In its most recent report on the US, the UN Committee Against Torture cited “the secrecy of [assurances] procedures including the absence of judicial scrutiny,” and called on the US to “establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review.”