7 December :: Sec. Rice in Kiev says US has forbidden all forms of cruel or inhumane treatment, anywhere US personnel operate... 6 December :: ACLU files suit against Bush admin. for kidnapping foreign national... :: HRW: Rice "miscast" rendition as legal; it is clearly banned under international law... 5 December :: McCain holds firm, torture ban must be total, must be law; Hadley pushing CIA exemption... Human Rights Watch :: Reports on abuse...

Under Article VI of the US Constitution:
"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."

Under Article 1 of the Convention against Torture:
"1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession"...

Under Article 2 of the Convention against Torture:
"2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Under Article 4 of the Convention against Torture:
"1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."

Under the US Foreign Assistance Act:
Section 502b: "a principal goal of the foreign policy of the United States shall be to promote increased observance of internationally recognized human rights by all countries".

Under Article I, Section 8, of the US Constitution:
"The Congress shall have Power... To define and punish... Offences against the Law of Nations..."

Under US Alien Tort Claims Act (1789):
"the district courts should have original jurisdiction of any civil tort action by an alien... committed in violation of the law of nations or a treaty of the United States"

Amid growing concern relating to press reports of undisclosed CIA flights through or over European nations, with possible connections to the abduction of terror suspects and the use of secret detention centers, US Secretary of State Condoleezza Rice has sought to defend US policy. She admitted that the US might make mistakes in the "war on terror", but did not make specific reference to controversy over the alleged abduction of an innocent German citizen who, after 5 months of questioning in Afghanistan, proved to be a case of mistaken identity.

Before departing for her tour of European nations, she laid out a hard-line case for maintaining current policy, though her comments did not make clear what official policy is at present. She has affirmed that "The US does not permit, tolerate or condone torture under any circumstances". But human rights campaigners have been quick to note her arguments seem to work on the premise that nothing done by the Bush government can be construed as torture, under newly refined definitions.

Numerous reports described her statements as "chastising" European leaders, saying they were already benefitting concretely from US counter-terror policy, and that such policies had saved European lives. Her speech was received by the press as a preemptive rebuke, as if trying to set the tone for debate on the issue. She did not address the numerous press reports and newly opened EU investigations into alleged extrajudicial detentions.

Legal experts were quick to come forward to answer various of the points argued by Sec. Rice. Her statements seem to have raised more doubts and questions than they resolved. The Guardian newspaper reported yesterday from Washington that Rice claimed the tactic of "extraordinary rendition" had been used "for decades" and "is not unique to the United States, or to the current administration".

This defense of the policy, however, is simply unfounded and legally incoherent: a Georgetown law professor, David Luban, was quoted as saying "The argument makes no sense unless there is an assumption that the purpose of rendition is to send people to a place where things could be done to them that could not be done in the United States".

Essentially, Rice's argument that the tactic is "not unique" and is of vital use in combatting terrorism, has no meaning unless it is intended to express a policy whereby detainees are deliberately relocated to jurisdictions where they might be mistreated in ways that violate US law. What's more, this defense does not explain away legal complications arising from the US interrogating "ghost detainees" in CIA- or Pentagon-managed prisons, where US jurisdiction clearly applies.

Not only is is explicitly impermissible under international law to transfer prisoners of any kind to nations where it is thought likely they will be subject to inhumane treatment, abuse or torture —political asylum law is based on this principle, and Kazakhstan has recently faced warnings that its returning Andizhan refugees to Uzbekistan violates international law—, but US law requires that US foreign policy actively promote and protect human rights everywhere.

Section 502b of the Foreign Assistance Act explicitly states that "a principal goal of the foreign policy of the United States shall be to promote increased observance of internationally recognized human rights by all countries". The US State Department was required to open an office for the global study of human rights situations in all nations, as a result of this law.

It also specifies that "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights". According to Robert F. Drinan, also of Georgetown, the US government has cut off aid "in fewer than ten instances".

Nevertheless, such laws are the reason that the Taliban was not recognized as a legitimate government, motivated the divestment that led to South Africa's undoing the apartheid regime, and have helped to isolate governments in Soviet satellite republics where popular outcry overthrew autocratic regimes.

The United States Constitution, through the Eighth Amendment, famously prohibits "cruel and unusual punishment", which has been construed to mean any form of torture, though in 1976 the US Supreme Court ruled that it did not bar the application of the death penalty by way of due process in the courts.

So the case would seem to be this: torture is illegal under US domestic law, under the Constitution, under the Uniform Code of Military Justice —which governs the US Armed Forces justice sytem—, under various treaties defining international law, and the US government is required by law to promote human rights everywhere. And, Sen. John McCain, known for breaking ranks with party leaders on issues of principle, has managed to pass an outright torture ban by a margin of 90 to 9 in the often cautious Senate.

Nevertheless, the current voice of the State Department has carved out an apprently untenable argument where extrajudicial "rendition" of prisoners —who may be secretly abducted, held without charge, incommunicado and indefinitely— is perfectly permissible under the law, and where torture is either incidental or convenient, but not illegal. Add to this the extraordinary lobbying effort through which the vice president and the president's national security adviser have reportedly sought, unsuccessfully, to persuade senators to give the CIA a specific exemption from the ban.

Rice's commentary, over the last three days has wavered, has used varying premises to defend what is essentially a legal argument without legal foundations. She has repeatedly claimed that her government does not stand for torture, but she has refused to spell out any definition which she ascribes to torture, as such.

She spoke the words: "Renditions take terrorists out of action, and save lives", adding that "Such renditions are permissible under international law", but there is no provision of international law which permits them, and Article 2, Section 2, of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment directs that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

These inconsistencies not only shed light on important tensions over the legal foundations on which democratic governments base much of their authority, they pose a real state of confusion for domestic political negotiation and international diplomatic relations. The position that torture does not happen, but facilitating abuse is not necessarily illegal, is simply not a sustainable interpretation of domestic or humanitarian law. [s]

STORY UPDATE:
Secretary Rice spoke to the press while in Kiev, Ukraine, today, Wednesday, and announced that the US had prohibited all inhumane treatment of prisoners. She said "As a matter of U.S. policy, the United States' obligations under the CAT [U.N. Convention Against Torture], which prohibits cruel, inhumane and degrading treatment -- those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States".

As reported by the Washington Post, this announcement appears to signal an essential shift in Bush administration policy. The administration had previously argued that obligations under the Convention Against Torture, the Geneva Conventions and other international treaties did not apply on foreign soil —this was the reasoning behind using the Guantánamo Bay naval facility for interrogations—, but now official policy appears to be in line with Sen. McCain's proposed total ban.

8 December Update:
Human Rights Watch has, however, already issued a statement calling Rice's statement in favor of international torture bans "inadequate". The organization stated that the Secretary of State's comments did not address any specific allegations of secret or extralegal procedures which, if true, would violate those prohibitions.

Tom Malinowski, Washington director of Human Rights Watch, is quoted in the statement, saying the administration "should close secret prisons and get rid of waterboards" and "drop its opposition to Senator John McCain's legislation, pending in the U.S. Congress, which would strengthen the legal prohibition against all cruel, inhumane and degrading treatment against all detainees, worldwide."

Investigations into the possible complicity of European governments in secret detainee rendition flights and secret detention and interrogation facilities on European soil are ongoing through the European Union. Governments have been reminded that official complicity in illegal covert detentions could result in their nations having EU voting rights restricted.

9 December Update:
Khaled el-Masri, a Lebanese-born German citizen, abducted while on holiday in Tunisia in December of 2003, by the CIA, then held, interrogated and tortured for 5 months in a prison camp in Afghanistan, is demanding a formal apology from the US government. Sec. of State Rice admitted to Germany's chancellor, Angela Merkel, this week, that el-Masri's abduction was a "mistake". He was released in 2004, when it was learned he shared the name of the al-Qaeda militant the CIA had thought they were detaining.

The ACLU has filed suit on behalf of el-Masri in US federal court, "charges that George Tenet and other CIA officials violated U.S. and universal human rights laws when they authorized agents to kidnap el-Masri, and that his unlawful abduction and treatment were the direct result of an illegal CIA policy known as 'extraordinary rendition'." The German foreign minister is now under pressure to resign, as has the former interior minister, for their concealing knowledge about the affair.

Not only is it legal for a foreign national to sue in federal courts for human rights violations, but under an act of the very first US Congress, the Alien Tort Claims Act, "the district courts should have original jurisdiction of any civil tort action by an alien... committed in violation of the law of nations or a treaty of the United States". That provision was broadened significantly under the 1992 Tort Victim Protection Act, which expressly permits foreign nationals to sue their torturers in US courts.

BACKGROUND:
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —based in part on the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the General Assembly on 9 December 1975— was formally adopted by the UN in 1984 and entered into force on 26 June 1987.

Under Part I, Article II, Section 1 of the treaty, "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." [emphasis added] the US Constitution specifically requires that ratification of any treaty binds the standards of the US system of laws to those of the ratified treaty. Some legal clauses relevant to stories in this special section can be found in selected excerpts to the left of this page, above.