Torture in the United States
There are cases, both documented and alleged, that involve the usage of torture by members of the United States government, military, law enforcement agencies, intelligence agencies, health care services, and other public organizations both in and out of the country.
Torture is illegal in the United States.[1] The United States came under scrutiny for controversial practices, both from foreign and domestic sources, following the Military Commissions Act of 2006.
After the U.S. dismissed United Nations concerns about torture in 2006,[2] one UK judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilized nations'.[3]
While the term "torture" has a variety of definitions and cultural contexts, this article addresses only those practices qualifying as torture under the definition of that term articulated in the codified law (primarily statutory) and case law of the United States.[nb 1]
The Human Rights Measurement Initiative[4] gives the US a score of 3.6 out of 10 for the right to freedom from torture and ill-treatment.[5]
Torture abroad[edit]
Khalid el-Masri[edit]
In 2007, the U.S. Supreme Court deferred to state secrets privilege when they refused to hear the case of Khalid el-Masri, who was kidnapped and tortured by the CIA under the Bush administration on December 21, 2003. The ACLU said that torture included methods of "forced anal penetration".[56][57]
Forms of torture and abuse[edit]
Certain practices of the United States military, civilian agencies such as the CIA, and private contractors have been condemned both domestically and internationally as torture. A fierce debate regarding non-standard interrogation techniques exists within the U.S. civilian and military intelligence community, with no general consensus as to what practices under what conditions are acceptable.
These practices have resulted in a number of deaths. According to Human Rights First, at least as many as 8 detainees have been tortured to death in U.S. custody in Iraq and Afghanistan.[58] The aversion of some military personnel forced to administer torture has been so strong, that one soldier, Alyssa Peterson, is believed to have committed suicide to avoid further participation.
Application of Fifth Amendment to overseas torture[edit]
In 1999, a U.S. court found that the Fifth Amendment does not apply in the case of overseas torture of aliens. Jennifer Harbury, a U.S. citizen whose husband Efraín Bámaca Velásquez had been tortured and murdered by CIA officials in Guatemala, complained that these actions violated her husband's Fifth Amendment right not to be deprived of life or liberty without due process of law. On December 12, 2000, the Court of Appeals for the District Court of Columbia rejected this claim, citing a lack of jurisdiction, since the events were planned and controlled in the United States, but the actual torture and murder occurred in Guatemala, a location where the U.S. did not exercise "de facto political control".[59]
United Nations Convention Against Torture[edit]
History of U.S. Accession[edit]
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture) was adopted on 10 December 1984 at the thirty-ninth session of the General Assembly of the United Nations.[94][nb 2] It was registered, and came into force, on 27 June 1987 in accordance with Article 27(1) of the convention.[95]
The United States signed the Convention in the spring of the following year, officially declaring at the time of its signature on 18 April 1988[95] that
U.S. case law on the convention[edit]
Burden of proof[edit]
In the U.S., an alien seeking protection against deportation under Article 3 of the Convention[nb 8] must establish that it is more likely than not that he will be tortured in the country of removal.[nb 9][99] Thus, the alien seeking to stop his deportation bears the burden of proof (or risk of non-persuasion) to show that torture is "more likely than not" to occur in the destination country.
In re M-B-A[edit]
In re M-B-A, a 2002 decision by the Board of Immigration Appeals,[100] concerned a 40-year-old Nigerian woman who was facing a deportation order due to a drug conviction in the US. She claimed that if returned to Nigeria, she would be imprisoned and tortured as a result of her U.S. conviction.
In her December 1999 hearing before the immigration judge, she presented evidence of Nigeria's Decree No. 33, which authorized imprisonment in her situation. When asked how she knew she would be tortured, she said that some years ago, she had spoken with a Nigerian friend,[nb 10] who had been convicted of a U.S. drug offense and then returned to Nigeria in 1995. The friend had told her that her family had to bring money to the jail for protection, that she slept on the floor and that "you probably get raped" by the guards because they have authority to do "whatever they can do." The friend remained in jail for two months until the family paid a bribe. M-B-A did not know if the friend had seen a judge before being incarcerated, or if the friend had been raped in the prison.
M-B-A also presented evidence that she had a chronic ulcer, asthma and suffered from depression; that she was on medication but had no one to help her with medicine if she ended up in jail; that her father was deceased and her mother lived in the UK and that she had no relations to help her in Nigeria, aside from an uncle who had sexually abused her as a child. She claimed she would be beaten and raped in prison by the guards and that most women suffered this treatment, and that her ex-fiancé (who lived in Nigeria) would bribe prison guards to beat her.
The full Board of Appeals[nb 11] considered the question of whether M-B-A had carried her burden of proof in showing that it was more likely than not that she would be tortured by a public official upon her return to Nigeria.
In a close 7-6 decision, the Board found that M-B-A had not demonstrated that it was more likely than not that she would be imprisoned in Nigeria on the basis of Decree 33. She did not present any evidence on the question of the extent to which the Decree was enforced, or against whom it was enforced. Her own evidence about enforcement was either (a) her own speculation or (b) based on the conversation with her friend's experience during a different Nigerian regime.[nb 12] The Board stated