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Preventing Torture and other Ill-Treatment In U.S.
Military and Intelligence Detention Facilities

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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The
United States is obligated under both international humanitarian and human
rights law to prohibit, prevent and prosecute instances of torture and
other ill-treatment of persons in custody. The prohibition against
mistreatment applies to the United States during times of peace, armed
conflict, or a state of emergency. Any person is protected, whether a U.S.
national or a non-citizen. It is irrelevant whether the detainee is
determined to be a prisoner-of-war, a protected person, or a so-called
�security detainee� or �unlawful combatant.� And the prohibition is in
effect within the territory of the United States or any place anywhere
U.S. authorities have control over a person. In short, the prohibition
against torture and ill-treatment is absolute.

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.

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