Seven Ways U.S. Post-9/11 Detention Policy Fell Short Of Human Rights Standards

As hunger strikes at the detention center at Guantanamo Bay increasingly become a human rights concern, a new exhaustive report from a group of bipartisan former officials, and medical and legal experts declares that U.S. treatment of detainees after September 11, 2001 constituted torture.

The 577-page report comes out of more than two years of research, interviews, investigation, and analysis. It was led by staunch Republican Asa Hutchinson, who told the New York Times, “This has not been an easy inquiry for me, because I know many of the players … But I just think we learn from history.”

The report issues a series of unanimous recommendations. However, there was one point on which they could not reach consensus: whether or not the detention center should be closed. They repeatedly lamented the lack of declassified government information, and suggested that more access might enable them to reach a conclusion on that question. Below are seven key findings from the report.

1. U.S. forces used interrogation techniques that constitute torture, and many more constituted “cruel, inhuman and degrading treatment” — both violations of international treaty obligations. Techniques included sleep deprivation, stress positions, nudity, sensory deprivation, and threatening detainees with dogs. During a press conference today, former Ambassador Thomas Pickering lamented: “I spent my life as a diplomat and spent a good part of that life trying to importune other governments to life up to the rule of law. I was chagrined, embarrassed and in many ways felt undermined.

2. The nation’s most senior officials bear responsibility for “allowing and contributing to the spread of illegal interrogation techniques.” The report explains: “The most important element may have been to declare that the Geneva Conventions, a venerable instrument for ensuring humane treatment in time of war, did not apply to Al Qaeda and Taliban captives in Afghanistan or Guantanamo. The administration never specified what rules would apply instead. The other major factor was President Bush’s authorization of brutal techniques by the CIA for selected detainees.” The CIA also created its own detention and interrogation facilities in several other locations.

3. There is no compelling evidence that illegal torture techniques were effective. In fact, it is likely that torture techniques are less effective, since they often compel false confessions, and distinguishing what is useful from what is misleading is difficult at best.

4. Lawyers in President Bush’s Office of Legal Counsel repeatedly gave wrong advice that authorized illegal and torturous interrogation techniques. In doing so, they willfully ignored the advice of those in other departments with substantial expertise and “ did not properly serve their clients: the president the American people.

5. The United States violated its international legal obligations in capturing individuals and transferring them to another country for interrogation without legal process. From the Report: “After September 11, 2001, the extraordinary rendition program consisted of individuals being captured in one part of the world and transferred extrajudicially to another location for the purpose of interrogation rather than legal process. The U.N. officials involved did not notify the detainees’ families of their whereabouts, or provide the detainees with legal representation in any locations operated by the CIA as ‘black sites’ or for proxy detention. What’s more, the commission found that U.S. officials committed torture at these black sites, and that suspects were more likely than not to be tortured in the detaining countries, in spite of diplomatic assurances to the contrary.

6. Forced feeding techniques used on hunger strikers are a form of torture and must end. While the commission sympathizes with the U.S. interest in preventing inmate suicides, it calls for physicians to oversee this invasive and painful process, and to determine the competence of the detainees — man of whom have now lost hope that they will ever see legal process — to make their own decisions.

7. The U.S. government should not invoke the state-secrets privilege to block lawsuits seeking internationally recognized relief for torture. The Convention Against Torture requires states to ensure that the legal system contains an adequate means for torture redress; ours does not when every lawsuit is blocked by government claims of immunity without an opportunity for the judge to review, in secret, the information the government claims must remain secret.

Although commissioners did not come to a consensus on how to handle prisoners indefinitely detained at Guantanamo, those who called for the detention center’s closure said detainees should get a trial either in U.S. courts or in a military commission with equivalent rights to the U.S. system. In recent weeks, increasing signs have emerged that the legal process for detainees who are getting a trial is not even close to living up to American values, with defendants’ legal files disappearing, and new evidence that intelligence officials were spying on confidential lawyer-client conversations.