The past month has been a relatively good one for the U.S. policy on torture. The military transferred seven detainees out of Guantánamo Bay and the White House forced out the defense secretary who admitted reluctance in approving detainee releases in the past. Meanwhile, Senator Dianne Feinstein is assuring reporters that the release of the Senate intelligence committee’s report on the CIA torture program is only days away. And appearing before the U.N. Committee Against Torture, the U.S. delegation unequivocally affirmed, “torture and cruel inhuman and degrading treatment are prohibited at all times and in all places,” including places outside of U.S. borders, like Guantánamo Bay.
The statement to the U.N. was celebrated as a positive shift away from Bush-administration policy, but it only addresses part of the U.S.’s history of failure to adhere to the U.N. Convention Against Torture. Article 14 of the treaty requires signatory states to ensure that victims of torture have access to redress and compensation. In November, the U.N. Committee Against Torture reviewed U.S. compliance with the treaty and asked the American delegation how many victims of torture had successfully obtained “effective remedy” for their treatment.
State Department Legal Adviser Mary McLeod effectively dodged the question. In lieu of providing actual numbers (there is no known case in which a torture victim has been financially compensated by the U.S.), she explained, “Although Article 14 of the Convention contemplates an enforceable right to fair and adequate compensation for victims of torture, it would be anomalous under the law of war to provide individuals detained as enemy belligerents with a judicially enforceable individual right to a claim for monetary compensation against the detaining power for alleged unlawful conduct.”
Essentially, because the U.S. picked people up for fighting with or alongside the Taliban, Al Qaeda, or its associated forces, law of war says they aren’t eligible for compensation. There are a few problems with her analysis. Being an enemy of the U.S. does not preclude an individual from being a victim of torture. It is illegal to torture anyone—anti-American terrorists included. “If you admit you committed a violation of fundamental norm, a treaty breach, obligation says you have to remedy it,” said Fionnuala Ní Aoláin, the executive editor of Just Security. “That’s the heart of the contract, the heart of the Convention Against Torture.”
Not only is it illegal to torture enemy fighters, but many of the U.S. victims of torture were not actually part of the Taliban, Al Qaeda, or any mutation of either group—they were simply in the wrong place at the wrong time.
In 2010, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell, testified in federal court about the known innocence of several Guantánamo prisoners. “It became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantanamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all,” he said.
He continued, “We relied upon Afghans...and upon Pakistanis, to hand over prisoners whom they had apprehended or who had been turned over to them for bounties, sometimes as much as $5,000 per head. Such practices meant that the likelihood was high that some of the Guantánamo detainees had been turned in to U.S. forces to settle local scores, for tribal reasons, or just as a method of making money.”
Murat Kurnaz was one of these detainees. Pakistani police picked him up shortly after September 11, 2001 and sold him to U.S. intelligence agents for $3,000. Kurnaz spent two months in U.S. custody in Kandahar, where interrogators beat him, forced his head under water, and electrocuted him, before flying him to Guantanamo. There was no evidence of the 19-year-old German citizen’s guilt, and by 2002, American and German intelligence officials agreed that Kurnaz was innocent and should be released. But he remained in Guantanamo until August of 2006.
He has received no compensation from the U.S. government. “Financially things have not been easy. He was in Guantánamo, instead of trade school, so it’s been hard for him to find sustainable work,” said his lawyer, Baher Azmy. “He is doing better now that he was before, but I actually think he is uniquely strong among released detainees—many of them are shattered.”
When Kurnaz appeared before the UN Committee Against Torture in November, he did not seek reparations—he simply asked that those who tortured him be punished for their actions.
“What this means,” says Ní Aoláin about the U.S.’s failure to compensate torture victims, “is that the cost of owing up to the fact that ‘We tortured some folks’ becomes zero.” She added, “This not only risks making a mockery of the torture treaty, but also sets a precedent for other states. You have a pathway for other states to say, ‘We violated the torture treaty, but we don’t have to compensate the victims because they fall into a category of undesirable or enemy combatant.’”
Associate Deputy Attorney General Robin Jacobinson assured the U.N. panel that U.S. domestic law provides a range of options for torture victims seeking redress. “These include injunctions, compensatory damages, punitive damages, and declaratory relief. In addition, the U.S. Congress has authorized the federal government to bring civil actions to enjoin acts or patterns of conduct that violate constitutional rights, including those that would amount to torture. At the federal level, the principal avenues of individual redress are administrative tort claims and civil litigation,” she said.
This roughly translates to: The court can order that acts that amount to torture be stopped. They can award money to victims of torture. They can levy fines against those who committed the torture. In addition, the Justice Department can file a lawsuit against those who committed torture and victims of torture can file their own lawsuits.
While these rights may exist on paper, the U.S. delegation failed to give a single example of this happening in practice. Neither the architects of the torture program nor the practitioners have been charged with any wrongdoing. The Justice Department is highly unlikely to sue the CIA for committing acts of torture. As for victims of torture filing their own lawsuits? Past precedent doesn’t inspire much hope.
Khaled Al-Masri was picked up in Macedonia in 2003 by CIA agents who mistook him for an Al Qaeda suspect with a similar name. He was stripped, beaten, and drugged in a secret prison before the CIA realized they had the wrong guy and dumped him on the side of the road in Albania. When he tried to sue the CIA in federal court in 2006, U.S. District Judge T.S. Ellis III admitted that he deserved remedy for his injuries, but ultimately threw out the case. “Private interests must give way to the national interest in preserving state secrets,” he wrote when he dismissed the lawsuit.
“There’s a gap between rhetoric and reality,” said Ní Aoláin. “These kinds of technical gymnastics actual serve to undermine legitimacy and integrity of U.S.’s acknowledgement on torture.”