The ever-widening reports of torture and other ill-treatment at U.S. military and intelligence detention centers abroad highlights the need for a fundamental reevaluation by the United States of its treatment of persons in custody. Set out below are seven general proposals followed by numerous specific recommendations.
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Human Rights Watch urges the U.S. government to adopt the following recommendations. These recommendations are consistent with international law though not all are specifically required by it. Where international human rights and humanitarian law differ, the general human rights standard is first set out, followed by the more specific humanitarian law requirement. Implementing these recommendations would reduce the likelihood of ill-treatment in U.S. military and intelligence detention facilities. They would also help the U.S. government demonstrate that it was serious about addressing the problems that have recently come to light.
I. Publicly Condemn Torture and other Mistreatment in Detention
II. Improve Conditions of Detention
III. Improve Access to Detention Facilities
IV. Institute Safeguards during Interrogations
V. Conduct Investigations & Prosecutions; Provide Reparations for Unlawful Conduct
VI. Adopt Legal Measures for a Program to End Torture
VII. End Participation and Complicity in Torture Elsewhere
I. Publicly Condemn Torture and other Mistreatment in Detention
1) President George W. Bush and other senior U.S. officials must in no uncertain terms condemn the use of torture, and cruel, inhuman or degrading treatment, including so-called “stress and duress” techniques, in all U.S. detention facilities at all times. The administration should release to the public all government documents relating to U.S. policy on the treatment of persons in custody. The administration must publicly commit itself to taking all necessary action to investigate, prosecute and punish all those responsible for abuses, including persons at the highest levels.
2) Senior U.S. officials should affirm that U.S. officials or government agents will not participate or be complicit in the torture or other mistreatment of persons held in the custody of other countries.
3) Official statements condemning torturing and other ill-treatment must be disseminated widely within the U.S. armed forces and intelligence community.
II. Improve Conditions of Detention
1) The U.S. government should ensure that conditions of detention conform to the U.N. Standard Minimum Rules for the Treatment of Prisoners and, where applicable, to the requirements of the Geneva Conventions.
2) The United States should abolish the use of prolonged solitary confinement.
3) Detainees must have access to a review of the basis for their detention in accordance with international human rights standards. Persons detained in accordance with the Fourth Geneva Convention have the right to appeal their detention and to have the basis for their detention reviewed every six months.
4) The United States should promptly release all detainees for whom there exists no lawful basis under international law for their detention or prosecute them in accordance with international fair trial standards. No detainee can be held in indefinite arbitrary detention.
III. Improve Access to Detention Facilities
1) The U.S. government should publicly provide information on the location of all U.S. military and CIA detention facilities in the United States and abroad. Detainees should only be held in officially recognized places of detention.
2) The United States should end the practice of incommunicado detention in all its detention facilities.
3) Information on persons taken into custody should be promptly communicated to relatives and legal counsel. In situations in which international humanitarian law applies, the United States must comply fully with Geneva Convention requirements on the notification of families of persons in custody, including the required cooperation with the International Committee of the Red Cross (ICRC).
4) Detainees must be permitted visits by legal counsel, medical personnel and appropriately supervised family members. Detained nationals of third countries must be allowed access to diplomatic representatives of their country. Where international humanitarian law takes precedence, the U.S. should permit family visits unless specific security concerns dictate otherwise.
5) The United States must provide the ICRC access to all persons who are taken prisoner or detained in any situation designated as armed conflict by the United States. ICRC access should be provided in full accordance with the ICRC's mandate.
6) Non-governmental human rights organizations the report publicly should be given full access to U.S. detention facilities and be able to meet in private with detainees at their request.
IV. Institute Safeguards during Interrogations
1) Interrogations must never violate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or other requirements of international law. Interrogations carried out in where international humanitarian law applies must not violate the Geneva Conventions.
2) Persons questioned regarding criminal offenses should be permitted to have an attorney present. In conformity with past U.S. military practice, Judge Advocates should be present during all interrogations of persons in military custody.
3) All personnel who come into contact with detainees, including interrogators, should wear badges bearing their name.
4) Interrogations should be videotaped wherever possible.
5) Evidence obtained through torture or other unlawful means must not be admitted into any legal proceeding (except in prosecutions of alleged perpetrators).
6) During situations of armed conflict, U.S. military interrogation rules of engagement and practices must strictly conform to the Geneva Conventions. Detainees who are not protected by the Third Geneva Convention on prisoners of war or the Fourth Geneva Convention on protected persons (civilians), such as some third country nationals, are still protected by customary international humanitarian law as reflected in common article 3 to the Geneva Conventions and Article 75 of Protocol I (“fundamental guarantees”).
7) All military and intelligence personnel involved in the detention or interrogation of prisoners of war, detained civilians or any other detainee should receive new training on allowable interrogation techniques, to ensure that future interrogations comply with international legal standards on the treatment of detainees, particularly with respect to torture and other ill-treatment. Personnel should be instructed that using prohibited techniques is a violation of the law. All personnel should understand that they have a right and duty to refuse orders to commit torture or other mistreatment against persons in custody.
8) Personnel involved in interrogations must be appropriately supervised and should receive frequent evaluations and continual training.
9) Because private contractors cannot be held fully accountable, they should not be used as interrogators.
V. Conduct Investigations & Prosecutions; Provide Reparations for Unlawful Conduct
1) The U.S. military or the Justice Department should conduct prompt and impartial investigations of allegations of abuse at detention facilities used by the military and intelligence agencies. The findings of such investigations should be made public.
2) The U.S. Congress should establish an independent, bi-partisan commission to investigate broadly the treatment of all detainees held by the U.S. military and intelligence services in Afghanistan, Iraq, Guantanamo and elsewhere since 9/11. The findings of this commission should be made public.
3) Mechanisms should be established so that detainees in U.S. detention facilities can bring complaints of mistreatment to appropriate authorities. Such mechanisms could include the permanent placement inside detention facilities of non-governmental organizations or the relevant national human rights commission.
4) Medical personnel at detention facilities should pay close attention to injuries on detainees and other signs of abuse that may be due to mistreatment and report such information to the appropriate authorities.
5) The U.S. government must discipline and prosecute as appropriate all military or intelligence personnel, whatever their rank, implicated in the torture or mistreatment of detainees at any U.S. detention facility.
6) Prosecutions should reach all those who had command responsibility, not just lower ranking personnel who directly took part in abuses.
7) The Department of Justice should be fully authorized to bring criminal prosecutions against U.S. military personnel under the War Crimes Act or other relevant federal jurisdiction.
8) Persons prosecuted for their involvement in abuses must be tried in accordance with international fair trial standards. “Following orders” (due obedience) is not a defense for committing torture or other ill-treatment but could be taken into account as a possible mitigating factor in determining punishment.
9) The government should provide full reparations to detainees who were mistreated in detention or to their families. Reparations should include restitution, fair and adequate financial compensation, and medical care and rehabilitation.
VI. Adopt Legal Measures for a Program to End Torture
1) The U.S. military should revise as necessary military manuals, interrogation rules of engagement and other sources of military law and practice to conform with international human rights and humanitarian law on the treatment of detainees.
2) The U.S. government should amend the federal law on torture outside the United States so that it conforms to the letter and spirit of the Convention against Torture. The current statute permits cruel, inhuman or degrading treatment short of torture, and the infliction of certain “severe mental pain or suffering” that is prohibited under the convention.
3) The United States should ratify the Optional Protocol to the Convention against Torture, which would permit regular visits by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
4) The United States should publicly reconsider its opposition to the International Criminal Court.
VII. End Participation and Complicity in Torture Elsewhere
1) The United States should abide by its international obligations under the Convention against Torture and never forcibly return anyone to a country where three are substantial grounds for believe that he or shoe would be in danger of being subjected to torture or other ill treatment.
2) No U.S. official or agent of the United States should be complicit in the commission of torture elsewhere; the United States should not use information gained from detainees through the use of torture or other mistreatment.
3) The United States should prohibit reliance upon diplomatic assurances where there is substantial and credible evidence that torture and ill-treatment in the country of return are systematic, widespread or endemic; where governmental authorities do not control the forces in their country responsible for torture; or where the person subject to return is a member of a particular racial, ethnic, religious, political or other identifiable group that the government consistently targets torture or ill-treatment.
4) The United States should ensure that any person subject to return has the effective opportunity, in conformity with internationally recognized procedural guarantees, to challenge the legality of the return—including the reliability of any diplomatic assurances provided and the adequacy of any proposed post-return monitoring arrangements—prior to return before an independent tribunal and with the right of appeal.
