January 25, 2005
The prohibition of torture and inhumane treatment is absolute. It should never be read to legitimize the outsourcing of abuse to U.S. interrogators overseas.
Kenneth Roth, executive director of Human Rights Watch

The Bush administration contends that no law prevents the Central Intelligence Agency from engaging in inhumane treatment of detainees abroad.

In responses to U.S. Senate inquiries, White House Counsel and Attorney General-nominee Alberto Gonzales claimed that the prohibition on cruel, inhuman or degrading treatment—enshrined in a treaty the United States ratified in 1994—does not apply to U.S. personnel in the treatment of non-citizens abroad. While asserting that torture by all U.S. personnel was unlawful, Gonzales indicated that no law would prohibit the CIA from engaging in cruel, inhuman or degrading treatment when it interrogates non-Americans outside the United States. The interpretation would permit the CIA to commit in secret detention facilities abroad many of the shocking forms of abuse that took place at Abu Ghraib.

“The Bush administration claims it rejects torture and inhumane treatment, but it continues to seek legal loopholes to permit abuse by U.S. interrogators,” said Kenneth Roth, executive director of Human Rights Watch. “This latest example of legal gymnastics shows once more that abuses by U.S. interrogators are the result of policy choices made at senior levels.”

Much of the Bush administration’s efforts to avoid legal restraints on its treatment of detainees have focused on the Geneva Conventions. But the administration has also had to contend with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which prohibits torture and other mistreatment of any person, regardless of whether they are covered by the Geneva Conventions. Faced with the CAT’s prohibition on torture, the administration redefined torture virtually out of existence—a position from which it has now retreated. But prior to Gonzales’s written responses to senators reviewing his nomination to be attorney general, the Bush administration had never asserted that the prohibition on cruel, inhuman or degrading treatment did not apply to U.S. actions abroad.

When the U.S. Senate gave its advice and consent to ratification of the Convention Against Torture in 1994, it included a reservation under which the United States defined the prohibited “cruel, inhuman or degrading treatment” to mean the ill-treatment prohibited by the Fifth, Eighth or Fourteenth Amendments to the U.S. Constitution.

The U.S. reservation was intended to clarify the kinds of conduct that would be prohibited. Yet Gonzales contends that the reservation also limits the geographic reach of the treaty. He asserts that because the Constitution does not apply to non-U.S. citizens outside the United States, neither does the Convention Against Torture’s prohibition on ill-treatment. This interpretation would mean that U.S. officials interrogating or detaining non-U.S. citizens abroad would be free to engage in cruel and inhuman treatment short of torture without violating the CAT.

This interpretation is as unprecedented as it is implausible: the treaty unambiguously calls on governments to stamp out torture and ill-treatment to the fullest extent of their authority. This clearly covers acts by U.S. agents anywhere in the world.

“The prohibition of torture and inhumane treatment is absolute,” said Roth. “It should never be read to legitimize the outsourcing of abuse to U.S. interrogators overseas.”

The CIA is believed to hold a number of detainees in multiple secret locations around the world. The U.S. government has denied these detainees access to international monitors such as the International Committee of the Red Cross. Human Rights Watch issued a 46-page report last October on the CIA detainees entitled “The United States’ ‘Disappeared’: The CIA’s Long-Term ‘Ghost Detainees.”

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