White House CAT Consultation Interventions June 13, 2011, 2:30-5 PM EST Interventions by Category: I.

Criminal Justice: Joey Mogul, Peoples Law Office (Federal crime of torture, police brutality, John Burge case, electroshock) The Chicago torture cases showcase a pattern and practice of torture within the Chicago Police Department. From 1972 to 1991, former Chicago Police Commander Jon Burge and white detectives under his command tortured over 110 African American men and women at Area 2 and 3 Police Headquarters. In June 2010, the U.S. Attorneys Office in the Northern District of Illinois, in conjunction with the U.S. Department of Justices Civil Rights Division, successfully prosecuted Burge for two counts of obstruction of justice and one count of perjury. Burge was ultimately convicted for the lies he told under oath when denying he and others committed acts of torture. However, he was not prosecuted for his actual acts of torture because the statute of limitations had expired for these crimes. Burge did not act alone and there is more than ample evidence that demonstrates he worked with several detectives when engaging in this pattern and practice of torture. At least five other detectives who worked alongside Burge at Area 2 and 3 Police Headquarters have testified and denied under oath that they or any other detectives engaged in acts of torture. These denials have all occurred within this last five years. Therefore, these alleged crimes are not barred by the relevant statute of limitations and these detectives can and should be criminally investigated and prosecuted by the U.S. Government in order to heed the Committee Against Tortures 2006 recommendation to bring the perpetrators to justice. We call for the U.S. Government to criminally prosecute all perpetrators who engaged in acts of torture in Chicago Police torture cases. On Question 1: Standards to meet are unduly onerous. In 2010, congress introduced a law enforcement prevention of torture statute, which the administration should support. On Question 36: The CAT review previously requested the federal government devise standards for use of electroshock devices, and we continue to request this occur, as devices such as tasers continue to be misused. Brutality of force by law enforcement officers: Still seen on people of color, especially LGBT. For reference, see the Department of Justices report on New Orleans Police Department. Connie de la Vega, Human Rights Advocates & input from the ACLU Capital Punishment Project (Death Penalty) A number of issues are raised there that are important but perhaps more relevant to the ICCPR and CERD reviews. Those issues include: execution of innocent people, execution of

mentally retarded people, racial bias, and lack of procedural protections such as adequate counsel and federal review. The issues most relevant to the CAT review are the methods of execution, the long stays on death row, and the conditions of confinement on death row. On methods of execution the following examples are compelling: 1) Lethal injection, the most commonly used method of execution in the United States, often results in excruciating pain and suffering. For example, in Ohio, Rommel Broom was subjected to 18 attempts to find a vein for over 2 hours before being given a reprieve for a week. In another Ohio case, it took over 2 hours to execute a man. The lack of oversight and regulation of these procedures compounds the risk of pain and suffering. A recent shortage of sodium thiopental, one of the three drugs used in lethal injection, led to many states obtaining the drug by questionable means and the use of possibly expired drugs. The federal government needs to conduct more oversight and regulation over the use of these drugs as it did with the recent seizure of several states supply because of issues related to how they were obtained. Questions still remain concerning many other states supplies. Many states continue to authorize other methods of execution that risk excruciating and unnecessary pain and suffering. For instance, the State of Utah recently executed Ronnie Gardner by firing squad. Though its use is rare, other states continue to authorize the electric chair as an execution method despite its documented problems.

2)

3)

Death row phenomena long stays on death row are causing extreme hardship and mental anguish violating the prohibition against cruel, inhuman and degrading treatment and punishment. Supreme Court Justice Stephen Breyer and former Justice John Paul Stephens have recognized that such a lengthy delay in a condemned persons execution raises serious Eighth Amendment concerns. See, e.g., Lackey v. Texas, 514 U.S. 1045 (1995) (opinion of Stevens, J., respecting denial of certiorari); Johnson v. Bredesen, 130 S.Ct. 541 (2009) (opinion of Stevens, J., joined by Breyer, J., respecting denial of certiorari); Smith v. Arizona, 552 U.S. 985 (2007) (opinion of Breyer, J., dissenting from denial of certiorari). The following examples are compelling in this regard: 1) In California, the average wait on death row is now close to 20 years, and many cases are now approaching 30 years. There have been more suicides than executions since the death penalty was reenacted in California. 2) One man has been on death row for 20 years without his first appeal being heard for reasons that were not his fault. It all started with the loss of many of the trial transcripts and it took 15 years to put the record together. Death and retirement of counsel and delays of up to 5 years once cases are briefed before Cal. Supreme Court hears them means the earliest his first appeal will be decided is estimated to be 28 years after conviction. 3) Lengthy delays are common throughout most of the states. There are insufficient resources to provide proper appeals in most states and they should be urged to stop using the penalty as there is no way to implement it properly.

Response from Sarah Cleveland: Is your concern regarding the absolute amount of time on death row? De la Vega: Yes, and I do not see a remedy, because states do not have adequate resources to make this process more effective.

Eric Tars, National Law Center on Homelessness and Poverty (Criminalization of Homelessness) I briefly wanted encourage the State Dept, in consultation with the DOJ and HUD, to include reference to the criminalization of homelessness and aggressive treatment of homeless persons by police in the CAT report under question 42. Several Special Rapporteurs at the international level as well as the US Interagency Plan to End Homelessness domestically have recently referred to the potential for the criminalization of life-sustaining activities by homeless persons as implicating cruel, inhuman, or degrading treatment or punishment, and the U.S. recently accepted recommendations from the UPR supporting the protection of homeless persons from abusive practices. Given this wealth of international and domestic attention, we will be making a shadow report on this subject and would be happy to provide information to the appropriate staff, and again, hope you include mention of this subject in your report to discourage such behavior by localities. Wendy Patten, Open Society Institute (Racial Profiling) Please address all forms of profiling traditional law enforcement context, border and immigration context, and national security context. Also address improvements the government plans to make to address this issue, including any improvements to the Attorney Generals Guidance on the Use of Race in Law Enforcement (2003), in particular eliminating the Guidances two-tiered standard that allows greater latitude for profiling in the national security context (42B) Other civil society respondent: Great if also covered religious profiling. Jane Zurnamer, National Immigrant Justice Center (Racial Profiling) (Q. 42(b)) Provide information on measures taken by the State party to put an end to racial profiling used by federal and state law enforcement officials. Have the federal Government and state governments adopted comprehensive legislation prohibiting racial profiling? Statistical data should also be provided on the extent to which such practices persist, as well as on complaints, prosecutions and sentences in such matters. The Secure Communities program introduces immigration enforcement into every arrest by local police. Currently, local law enforcement sends arrestees fingerprints to the Federal Bureau of Investigation to be checked against federal crime databases; under Secure Communities, all fingerprints would also be checked against DHSs databases. Although DHS has not fully rolled out the program, it has already led to surging detention and deportation numbers. The program is breaking down trust between immigrant

communities and the police, as some police officers target immigrants for minor offenses, such as driving without a taillight or a license. Despite huge community and political resistance to the program, DHS intends to roll out Secure Communities nationwide by 2013. A number of members of Congress and sheriffs oppose the program because it encourages racial profiling and breaks down trust between immigrant communities and the police. The agency has defended the program on the basis that it targets serious criminal aliens; however, almost 60% of immigrants arrested under the program have either no criminal history or have only been charged with minor offenses. Three governors have now sought to pull out of the program - Illinois, New York, and Massachusetts, citing issues of racial profiling. The government must suspend the program until it can adequately address the major problems identified in this problem. Efia Nwangaza, Malcolm X Center for Self Determination (Electroshock, Political Prisoners) There should be a prohibition of use of electroshock stun guns on children. I also call attention to the denial of release of political prisoners held in custody even after the federal bureau of pardons and paroles recommends release, as in the case of Veronza Bowers. Other respondent: Highlights treatment of Bradley Manning. - Baer response: Manning is held in the custody of Defense Dept (UCMJ) as pretrial detention while the case is being developed. Expect continued action.

II. Accountability and Remedies Devon Chaffee, American Civil Liberties Union (Accountability) As this will be the first CAT review since Obama closed the governments secret prisons and revamped a system of authorized cruelty in interrogation, Chaffee discussed the governments failure on questions 22-27, Articles 12,13, 14. She proposed four concrete recommendations the government should follow in promoting accountability for torture and cruel, inhuman or degrading treatment of detainees in U.S. custody and to ensure that victims of such abuse have access to fair and adequate remedy. These recommendaitons included: to consider non-judicial remedies for victims that have exhausted judicial recourse; to make clear that the special prosecutor looking into to the CIA interrogation program has the authority to follow the facts whereever they may lead; to support legislation to reform the states secret privilege and to recognize the courage of those who opposed torture. Please contact "Devon Chaffee" <dchaffee@dcaclu.org> for detailed information on these recommendations. Theresa Harris, Human Rights USA

Regarding Question 22: Please indicate if the State party has investigated, prosecuted and punished perpetrators under the federal extraterritorial criminal torture statute, as recommended by the Committee in its previous concluding observations (para. 13). If so, please provide further information on the relevant cases. On behalf of our clients, who supported the prosecution of Charles Taylor, Jr. with their testimony, thank you again for bringing forward that indictment and successfully prosecuting it, in a way that was sensitive to the needs of survivors of torture. The government did a lot of things right in that case and question 22 gives you the opportunity to say so. We would be happy to provide you with any additional information from the viewpoint of our clients, since they have first hand knowledge of how the case has strengthened respect for the rule of law in Liberia. However, there are areas where the next cases could be stronger. For example, including psychological torture in the indictment and jury instructions, and clarifying the specific intent standard in this context. We know DOJ and ICE now have lots of attorneys and investigators in their war crimes and special prosecutions units, and we know legal service providers have given you information about human rights violators who are living here in the U.S. When will we see another indictment under section 2340? Or will they all be visa fraud type immigration prosecutions leading to deportation? Ann Fagan Ginger, Meiklejohn Civil Liberties Union (State and local obligations) The federal government has an obligation to publicize treaty obligations throughout the federal, state, and local level. MCLI published a poster with the text of ratified treaties that is available free to government officials. Please contact us to distribute these to the state county and city levels. - Government response: Thank you for your efforts and acknowledged that this is an obligation. Efia Nwangaza, Malcolm X Center for Self-Determination (COINTELPRO) The U.S. Human Rights Report touts an African American President, Attorney General, Secretaries of State, but is silent on still imprisoned Black COINTELPRO/Civil Rights Era Political Prisoners, who paved their way, still improperly held for more than forty (40) years and the resurging political repression in the U.S. against anti-war, environmental, international humanitarians, and others exercising their 1st Amendment rights. Moreover, as noted in the OHCHR's Summary of U.S. Civil Society UPR Reports, the United States "falls short of its human rights obligations in the administration of justice particularly relating to racially sentencing and sentencing of juveniles to life without parole...treatment of individuals in high security facilities and of political prisoners." Many of these political activists are now held in distant, high security, sensory deprivation installations. These political activists, just like George Washington, Nelson Mandela, Dilma Rouseff, were all considered criminals by the administrations they challenged. Given modern day

enlightenment, acceptance, and the contributions of formerly criminalized and imprisoned political activists like South African President Nelson Mandela, for whom President Obama recently penned a Forward, and Brazils newly elected and globally celebrated President Dilma Rouseff, will the United States in fact lead by example and release its long imprisoned political activists, some more than 40 years? MORE SPECIFICALLY, We Demand the United States to: 1. Create concrete steps to use presidential powers to grant clemency and commute the sentences and release all COINTELRO/Civil Rights Era political activist currently held as prisoners in federal custody; 2. That the Obama-Holder Department of Justice review the convictions of all COINTELPRO/Civil Rights Era activists in federal or state custody to identify and address civil and human rights violations; 3. Obama take concrete steps to create or establish mechanisms, a Truth and Reconciliation Commission, to release and compensate all COINTELPRO/Civil Rights ERA political activists currently held in federal and state facilities. Shah of Bill of Rights Defense Committee Affirmatively indicate that senior officials implicated in the use of torture under the Bush administration can face charges. Catherine Read, Center for Victims of Torture (Remedies for Survivors) I am focusing on the section of Article 14 means for as full rehabilitation as possible. Others will speak to other legal remedies for survivors. Article 14 of the CAT carves out a right to health care for survivors. The U.S. is a leader in the field of torture rehabilitation, understanding the moral and strategic interests in healing survivors. It has had a long-standing and bipartisan commitment to healing torture survivors and remains the largest donor to this work allocating about $25 million annually both domestically and internationally. U.S. funding supports 27 domestic treatment programs and numerous programs overseas. Thank you to the Administration for its support through the budgetary process in funding for torture survivor rehabilitation programs through the Office of Refugee Resettlement and USAID, and through a State Department contribution to the UN Voluntary Fund for Victims of Torture. Despite this strong support for torture survivor rehabilitation, such programs are not accessible to victims of U.S. torture, including current and former detainees at Guantanamo, which is contrary to U.S. obligations under the CAT. Torture treatment is not a reward for innocence and withholding it should not be punishment for guilt. Innocence and guilt should be determined by the justice system not by the rehabilitation system developed under the CAT obligations. Rehabilitation should be made available to all survivors of torture.

Ten years after initial passage of the Torture Victims Relief Act (TVRA), budgetary levels have been stagnant and not kept pace with the need. Even a modest increase in the Presidents budget for rehabilitation programs, given that they represent a very small piece of the federal budget, would allow thousands more torture survivors to be healed and regain productive lives of dignity. To fulfill our obligations under Article 14, we must expand our investment in rehabilitation. We urge your support for the full authorization amounts for TVRA so that the U.S. can better serve a population of individuals whose lives would be transformed by treatment. In the last four years, torture survivor centers in the U.S. and around the world have had to close their doors. Unfortunately, these closures were not because their services were no longer necessary. In fact, the number of survivors continues to grow. These centers had to close simply because of insufficient funding. Unfortunately we have had trouble in Congress with passage of the TVRA reauthorization because of opposition to the UNVF and would welcome Administration support with outreach to Congress about this vital fund. It is important not only for the Administration to increase the allocation of funds in the Presidents budget, but for the Department of State to actively encourage European and other governments to increase their financial commitments to the U.N. Voluntary Fund. In addition, we urge you to support the candidacy of a well-qualified American to sit on the UNVF board that would be helpful in raising the profile of this important work. Cynthia Totten, Just Detention International (PLRA) U.S. prisoners are virtually prohibited from challenging their detention conditions. The Prison Litigation Reform Act could help problematic aspects of the current laws. Robin Philips, Advocates for Human Rights (Domestic Violence) This year, we collaborated with more than 20 organizations to brief the UN Special Rapporteur on Violence Against Women for her official visit to the United States. We appreciate the U.S. governments invitation to the Special Rapporteur, and its ongoing leadership in addressing violence against women. While the United States has many exemplary laws, we see in our work the dramatic need to monitor, improve, and better implement these laws to further protect women and comply with our international treaty obligations. I would like to address four key issues related to domestic violence: 1. Child custody in family and child protection courts. The failure of courts, police and child protection to respond appropriately to incidents of domestic violence and to consider this violence in visitation, custody, child support, and divorce proceedings has caused substantial harm to victims of domestic violence and their children. 2. Lack of uniformity and accountability in state domestic violence laws. In the U.S., domestic violence is addressed in state laws with no federal oversight which results in

inconsistent protection for victims of violence in different states. A lack of overarching federal standard for protection also contributes to a lack of protection for some victims. 3. Domestic violence has a disproportionate impact on poor, minority, indigenous, and immigrant women. When protective measures are not uniformly applied, it can create additional problems for victims from marginalized populations, such as undocumented immigrants, who may already be cautious or even fearful of approaching law enforcement. Fear of deportation, language barriers, and a social stigma attributed to victims of violence are pervasive in immigrant, minority, indigenous, and low-income communities. 4. The criminal justice system fails to address impunity for violence in many instances. In spite of strong laws in many states, perpetrators are often not held accountable for their violent criminal conduct or they are given sentences that do not account for the severity of the crime. Recommendations: We encourage the US government in particular to address the following remedies for victims of domestic violence: o Courts should develop policies and protocols that will improve their capacity to assess the impact of domestic violence on children and battered parents to arrive at safe and appropriate parenting arrangements. o Courts should be required to consider any history of domestic violence in determinations of custody, including prior orders for protection and domestic violence criminal convictions. o Judges, court personnel, and guardians ad litem should be required to undergo training regarding post-separation abuse, domestic violence, and child abuse. We also support the recommendations included in the Special Rapporteurs report, particularly recommendations that the US: o Explore more uniform remedies for victims of domestic violence, expanding federal causes of action under VAWA, where possible, mitigating current discrimination, and increasing uniformity and accountability at the state and local levels. o Review and more effectively address the disproportionate impact that violence has on poor, minority, indigenous, and immigrant women. Finally, we recommend that the Department of Justices Office on Violence against Women and the Administration for Children and Families at the Department of Health and Human Services be included in the CAT reporting process. We would be happy to provide any additional information you need to prepare your report. For more information, please contact <rphillips@advrights.org> Katrina Anderson, Center for Reproductive Rights (Domestic Violence)

Question 41 domestic violence As the Special Rapporteur on VAW recognized, abusers exercise control over their intimate partners by sabotaging their birth control or preventing them from getting an abortion. Consequently, access to contraception and timely abortion are especially critical for survivors seeking those services without the knowledge of their abusers. States should repeal unnecessary restrictions on access to abortion, such as mandatory waiting periods. The federal government should increase funding under VAWA for reproductive health services for victims of domestic violence. Domestic violence is a leading cause of homelessness, and several Rapporteurs as well as the CERD have raised concern about the lack of domestic violence shelters, in particular its effects on minority populations. Congress and HUD should expand the Violence against Women Acts housing protections to other federal housing programs, so that victims and their families are not unjustly evicted into homelessness, and increase funding for shelters so women are not forced to choose between homelessness and their own safety.

III. National Security Kate Desormeau, Immigrants Rights Project, American Civil Liberties Union (Federal Material Witness Statute) The Committee Against Torture has called for the United States upcoming report to address the use of the federal material witness statute, 18 U.S.C. 3144, which authorizes courts to issue an arrest warrant to secure the testimony of a witness in a criminal proceeding if it is shown that (1) an individual has information that is material to the criminal proceeding, and (2) it would be impracticable to secure the witnesss presence at the criminal proceeding by a subpoena. The federal governments use of the material witness statute was recently scrutinized by the U.S. Supreme Court in the case of Ashcroft v. Abdullah al-Kidd, No. 10-98, 563 U. S. ___ (decided May 31, 2011).1 The ACLU sees three overriding problems with the way the federal government has used the material witness statute after September 11, 2001: 1. The Department of Justice has used the statute not to secure witnesses testimony, but to preventively detain individuals who were viewed as suspects. 2. In many cases, the Department of Justice has failed to satisfy the statutes requirements of impracticability and materiality. 3. People arrested as material witnesses particularly Muslim, Arab, and South Asian men have been detained for long periods of time, and in harsh, punitive conditions not consistent with their status as witnesses.
1

The ACLU represents Mr. al-Kidd in his damages action against the federal officials responsible for his arrest and detention.

The federal government has resisted calls to make information about its use of the material witness statute public. After September 11, the Department of Justice routinely obtained court orders precluding the public from attending the material witness hearings, sealing court records, and imposing gag orders on the witnesses themselves to prevent them from speaking out about their ordeals.2 The Department of Justice has refused to disclose the names or the number of witnesses who have been arrested under the statute since September 11, where or for how long witnesses were detained, or any other details surrounding their arrest and detention.3 Even in response to Congressional inquiries, the Justice Department has provided only vague and generalized information:4 In 2005, the ACLU and Human Rights Watch (HRW) co-authored a report entitled Witness to Abuse: Human Rights Abuses Under the Material Witness Law Since September 11.5 For the report, the ACLU and HRW interviewed 70 people from across the United States who were arrested as material witnesses after September 11, 2001. All 70 were men. All but one was Muslim, by birth or conversion. All but four were of Middle Eastern or South Asian descent. The ACLU and HRW found that: Of these men, at least thirty were never brought before a grand jury or court to testify.6 During their imprisonment, many were interrogated about their own activities, beliefs, and travels often aggressively and without being given access to counsel. The ACLU and HRWs research suggests that the purpose of their arrest was to preventively detain them as suspects, not to secure their testimony as witnesses.7 In many cases, the federal government obtained material witness warrants for these individuals using affidavits that provided only cursory averments of materiality, or that relied on flimsy, incorrect, or false evidence of impracticability. In fact, most of the witnesses had voluntarily cooperated with the FBI in the past by providing interviews and consenting to searches of their homes.8 In several cases, the government failed to provide the witnesses with the reason for their arrest, and refused to honor their requests to speak with a lawyer. None of the 70 witnesses the ACLU and HRW interviewed had been given a Miranda warning informing him that he had the right to an attorney and the right to remain silent.9 While imprisoned, many of the witnesses were subjected to harsh and punitive conditions of confinement, including shackling, solitary confinement in high-

2 HRW and ACLU, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, at 15, HRW Reports Vol. 17, No. 2 (June 2005), available at http://www.aclu.org/FilesPDFs/materialwitnessreport.pdf (hereinafter Witness to Abuse). 3 The Department releases only aggregate numbers of material witness hearings held each year at the request of various components of the federal government. See, e.g., Bureau of Justice Statistics, U.S. Dept of Justice, Compendium of Federal Justice Statistics: 2003, NCJ No. 210299 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cfjs0301.pdf, at 18. 4 In May 2003, in response to a request from the House Judiciary Committee, the Justice Department stated that as of January 2003 it had detained fewer than fifty material witnesses in connection with the September 11 investigation, and that approximately half of these witnesses were held for more than thirty days. Letter from James E. Brown, acting assistant attorney general, Office of Legislative Affairs, to Rep. F. James Sensenbrenner, Jr., Chairman, House Judiciary Committee (May 13, 2003), page 49. 5 See supra note 2. 6 Witness to Abuse at 2. 7 Id. at 4, 58. 8 Id. at 3; see also 68-69. 9 Id. at 4.

security cells, strip searches, and other conditions normally reserved for prisoners suspected or convicted of the most serious crimes. Some witnesses were verbally and physically abused by prison staff.10 More than one third of the men were held in custody for two months or more, despite the statutes clear preference for deposition and release. See 8 U.S.C. 3144 (No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.). Some endured imprisonment for more than six months, and one witness spent more than a year in prison.11 In more than two dozen cases, the witness was not provided a detention hearing within three days of his arrest. In ten cases, the witness never received any kind of hearing at which he could contest his detention.12 This is despite 18 U.S.C. 3142(f), which requires that a detention hearing shall be held immediately upon the persons first appearance before the judicial officer, and that a continuance of this hearing may not exceed 3 days. Even upon release from custody, many witnesses were subject to burdensome conditions of release, including reporting requirements and travel restrictions. In fact, several of the witnesses were subject to restrictive conditions of release even after the criminal proceeding for which their testimony was ostensibly being sought had ended.13

These findings reveal a nationwide pattern of misuse of the statute by U.S. attorneys and FBI officials, suggesting a deliberate policy to misuse the material witness statute as a preventive detention tool. The Supreme Courts recent decision in al-Kidd underscores how important it is for the federal government to comply with the statutes requirements. Four of the eight Justices expressed concern about the use of the statute in Mr. al-Kidds case.14 Of particular note is Justice Kennedys concurrence, which provided the fifth vote to the majoritys holding that, assuming Mr. al-Kidds material witness warrant was valid,15 his arrest did not violate the Constitution because it was used pretextually. Justice Kennedy emphasized that the majoritys decision le[ft] unresolved whether the Governments use of the Material Witness Statute in this case was lawful. If the statutes impracticability requirement was not satisfied, Justice Kennedys concurrence suggests, this would be a violation of both the statute and the Fourth
10 Id. at 3; see also Department of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf (detailing the abuse of material witnesses as well as other detainees in federal detention facilities). 11 Id. at 3. 12 Id. at 48. 13 Id. at 30. 14 Justice Kagan took no part in the consideration or decision of the case. 15 In fact, Mr. al-Kidd never conceded that the warrant was valid. Rather, he declined to press his claim against Ashcroft, under a supervisory liability theory, for the material misstatements and omissions in the warrant application that rendered it invalid. See Majority Op, at 8 n.3 (recognizing that Mr. al-Kidds separate Fourth Amendment and statutory claims against the FBI agents who sought the material-witness warrant . . . are not before us.).

Amendments reasonableness requirement. This portion of Justice Kennedys concurrence was joined by Justices Ginsburg, Breyer, and Sotomayor four out of eight Justices hearing the case. Response from Harold Koh: Please provide specific recommendations on above concerns. o Kate: Justice Kennedy & Ginsbergs concurrence make clear that statute must include stringent controls when holding someone as a material witness.

Raha Wala, Human Rights First 5. Please provide information on: (a) Whether the State party has adopted a policy that ensures that no one is detained in any secret detention facility under its de facto effective control and that publicly condemns secret detention, pursuant the Committees previous concluding observations (para. 17). Please disclose detailed information on the existence of any such facilities, in the past and present, and the authority under which they have been established. In this respect, please respond to allegations made by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Council of Europe that the State party has used the British Indian Ocean Territory, Diego Garcia, for the secret detention of high-value terror suspects. The research of several NGOs and journalists confirms that the U.S. government maintains a classified facility on the Bagram air base where detainees are held in isolation, and allegedly subjected to sleep deprivation and disruption, extreme cold temperatures, and may be held and interrogated for up to nine weeks. The U.S. government has so far refused to provide any information about this facility, its conditions and the treatment of detainees there. Detainees have reported being denied adequate food and the water and other items necessary to perform their daily religious rituals. We are aware of other such temporary screening facilities in Afghanistan. The U.S. government should disclose the conditions of this facility and the treatment of detainees held there. It should specifically note whether any enhanced interrogation techniques such as sleep or sensory deprivation are being used there and for what purpose. The U.S. should also investigate to ensure that the treatment of detainees at this facility does not mount to cruel, inhuman or degrading treatment.

(b) The legal safeguards provided to the detainees and the manner in which they are treated. (c) Steps taken to address the reports of detainees held incommunicado and without the protection of domestic or international law (CCPR/C/USA/CO/3/Rev.1, para. 12). In this respect, please provide information on steps taken to ensure that all detained suspects, including in Diego Garcia and at Bagram Airbase in Afghanistan, are afforded, in practice, fundamental safeguards, including the right to a lawyer and an independent medical

examination, as well as the right to inform a relative and have access to a court and the right to challenge the grounds for their detention. Detainees at the Bagram Airbase in Afghanistan are not afforded the right to a lawyer and do not have access to a court or a meaningful ability to challenge their detention. The current Detainee Review Board (DRB) system provides only a personal representative who is a member of the U.S. military with little to no legal training to represent the detainee. The DRBs themselves rely heavily on classified evidence in determining whether the detainee meets the requirements for detention, and the detainee himself is neither allowed to see that evidence nor provided a useful summary. We recommend that the U.S. military provide detainees at Bagram legal counsel in these hearings, and/or provide all Bagram detainees the right to habeas corpus that is, the right to challenge their detention, with the assistance of counsel, in a U.S. federal court. Moreover, the U.S. should take further steps to declassify the evidence relied upon in the DRBs, by using established techniques of redaction and summaries of evidence, as is done in federal courts pursuant to the Classified Information Procedures Act (CIPA). 20. Please indicate if the International Committee of the Red Cross is granted access to all places of detention in any territory under its jurisdiction, including Bagram Airbase in Afghanistan and Diego Garcia, and under which conditions. It is not clear whether the ICRC has access to the classified screening facility, commonly known as the black jail at the Bagram Air Base. The United States should specify whether the ICRC has access to all detention and screening facilities on the base and to all of the individuals held at those facilities, and whether the ICRC is permitted to interview those individuals in a confidential manner about their treatment and conditions of confinement. If the ICRC does not currently have such access, the U.S. government should immediately provide it. 10. In light of the Committees previous concluding observations (para. 20), please provide updated information on steps taken to ensure that the State party applies the nonrefoulement guarantee to all detainees in its custody, including those detained outside its territory. Please provide information on steps taken to establish adequate judicial mechanisms to challenge all refoulement decisions. In its 2006 response to the CAT committee, the United States denied that Article 3s nonrefoulment obligations apply extraterritorially. In doing so, the United States relied heavily on a 1993 Supreme Court case, Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993), that held that the Refugee Conventions non-refoulment obligations do not generally apply extraterritorially. However, as Human Rights First has shown in a recent submission to the Legal Advisor at the State Department, it is erroneous to read the Supreme Courts decision in Sale to apply to the U.S.s non-refoulment obligations under Article 3 of CAT. The text and traveaux of the two conventions are sufficiently different as to merit independent interpretive analysis, and such analysis shows that Article 3 non-refoulment obligations in

the CAT were meant to apply extraterritorially. Moreover, the Supreme Court in Sale had clear policy concerns regarding the potential forced admission of thousands of Haitian refugees fleeing the conflict raging in Haiti at that time. These policy concerns do not apply here. We urge the United States to change its position and make clear to the committee that Article 3s non-refoulment protections apply extraterritorially to conduct with respect to persons outside of the United States. Andrea Prasow, Human Rights Watch (prasowa@hrw.org) (Guantanamo) I will be brief, as most of you are very familiar with these issues and are in fact responsible for many of the improvements we have seen in the last two years, so Id like to start by thanking you for that. However, some areas of concern remain. For your response to Question 8, regarding practical steps to close Guantanamo, wed like to emphasize that, as the Committee has recognized in the past with respect to the federal nature of the US, the obligation is on the US as a State Party to CAT, not to only one part of government. We hope your response will address resettlement of detainees. While we recognize it is a difficult issue, explaining that Congress is responsible for the failure to resettle detainees, even if true, is not a sufficient response to the Committees questions. We know that some organizations have submitted proposals to you regarding blanket certifications of all NATO countries, or all European countries. There are likely other proposals out there. We look forward to your response on these proposals and detailed steps explaining how you will continue with the resettlement and repatriation of detainees at Guantanamo. The Committee has also asked what steps have been taken to prosecute detainees. Currently there are two cases covering seven individuals that have been sworn in the military commissions system, and no referrals. Only six cases have concluded in the military commissions and one in federal court. We hope your answers will explain why more cases have not been pursued and outline a plan for moving forward with prosecution of those accused of crimes. The Committee has also asked what steps the US is taking to end indefinite detention. We at Human Rights Watch believe that the Executive Order setting forth a review process for detainees at Guantanamo was appropriated limited only to those detainees currently in custody. Nevertheless, it clearly acknowledges that rather than end the practice of indefinite detention without trial the US intends to continue it. We hope your response to the Committee will set forth how you will limit indefinite detention with a goal to ultimately prosecute in federal court or release all detainees currently at Guantanamo. Finally, the Committee has asked about compensation. What will be your answer? The assertion of the state secrets privilege has foreclosed one avenue of compensation, although we note that affirmative litigation should not be necessary in order to obtain eh internationally recognized right of redress for violations of CAT.

Question 38 asks about conditions at Guantanamo. What will you say about the burdensome conditions on detainees held in Camp 7, including issues related to alleged security measures taken during their transport to the courtroom. How will you respond about lack of family visits as well as the mental health consequences of prolonged, indefinite detention? While we recognize that there have been significant improvements in conditions of confinement at Guantanamo, we think it is important that your report outline the history of those conditions and note changes over time. Two years ago there was an investigation into conditions at Guantanamo, but it was flawed, and hampered by classification issues including potentially overclassification. As much information as possible should be made public about that investigation, as well as about past and current conditions of confinement at Guantanamo. For Question 43, we hope that your response will indicate that an invitation has been extended to the Special Procedure mandate holders to visit Guantanamo and it includes unmonitored access to detainees of their choosing. Wendy Patten, OSI (Rendition, non-refoulement) Please contact for comments: <wpatten@osi-dc.org> Naureen Shaw, Columbia HRI (Diplomatic Assurances) We request that, in its fifth periodic report, the U.S. government provide detailed information on its use of diplomatic assurances. The periodic review process provides the Administration an opportunity to clarify U.S. procedures and engage with the Committee on the appropriate human rights standards for assurances. Disclosure and engagement would demonstrate before the international community the Administrations break from abusive transfer practices, institutionalize recent improvements and, in practice, increase the reliability of assurances. During the last several years, the Human Rights Institute at Columbia Law School has taken a leading role in research on U.S. policy and practices related to diplomatic assurances. In December 2010, we published the report Promises to Keep: Diplomatic Assurances Against Torture in US Terrorism Transfers, surveying evolving jurisprudence and practice in the U.S., Canada and Europe, and describing the guidance of U.N. human rights bodies and experts. In this letter, we describe the Committees request for information on diplomatic assurances and the repeated concern that it and other U.N. bodies and experts have expressed in light of recent abusive practice. We then set out the benefits of disclosure and engagement with U.N. mechanisms on human rights standards for assurances. Finally, we describe particular information the Administration should provide in response to the Committees request. I. Concerns of the U.N. Committee Against Torture and Other U.N. Bodies and Experts

The Committee has requested that the Administration provide, in its fifth periodic report, information on: The procedures in place for obtaining diplomatic assurances; Steps taken to establish a judicial mechanism for reviewing, in last instance, the sufficiency and appropriateness of diplomatic assurances in any applicable case; Steps taken to guarantee effective post-return monitoring arrangements; and All cases since 11 September 2001 where diplomatic assurances have been provided. This request reflects concerns that the Committee Against Torture, the U.N. Human Rights Committee and several U.N. experts have previously raised. Categorized broadly, these concerns relate to the Administrations failure to disclose whether policies and procedures exist that: Rule out the transfer of individuals to countries that systematically violate human rights standards; Ensure a thorough examination of the merits of each individual case, including through judicial review; and Establish post-return monitoring arrangements that meet minimum standards for torture detection and prevention. Indeed, the Committee Against Torture and other U.N. bodies and experts have repeatedly expressed concern about the secrecy of the governments procedures and standards, as we noted in a letter we wrote you during the Universal Periodic Review (UPR) process. As we describe in our report Promises to Keep, the perspectives of the Committee Against Torture and other U.N. bodies and experts have evolved over the last decade.5 Assurances have long been used in the context of extradition, including to safeguard against torture. Indeed, in 1996 the U.N. Special Rapporteur on Torture Sir Nigel Rodley encouraged Canada to obtain assurances against torture if it intended to transfer a foreign national to Algeria. U.N. bodies and experts began to express greater caution in response to reports of torture following a string of assurances-based transfers of terrorism suspects. By 2005, U.N. experts like Special Rapporteur on Torture Manfred Nowak and High Commissioner for Human Rights Louise Arbour were arguing that assurances fundamentally undermined the system of human rights protections against torture, due both to assurances empirical ineffectiveness and their potential use as a tool to circumvent, rather than supplement, legal protections.7 This evolution underscores the need for the U.S. government to establish an unmistakable break from policies and practices of the recent past, including the abuse that resulted from faulty procedures and review processes. While the Administration has made clear its opposition to torture and referenced improvements to assurances policy, it has not clarified what procedures it has established to make assurances more reliableor to rule out transfers where assurances cannot be reliable. In the context of recent abuse, further disclosure and engagement with U.N. mechanisms is necessary to demonstrate the U.S.s realignment with the traditional use of assurances to reduce the risk of abuse. II. Benefits of Disclosure to Improve the Reliability of Assurances Engagement with U.N. mechanisms regarding assurances would help the U.S. determine the appropriate review process and standards for assessing the reliability of assurances and post-return monitoring. Notwithstanding the concerns U.N. bodies and officials have

expressed regarding assurances, they have shown an ability and willingness to provide clear and practical guidance. For example, in 2004 Special Rapporteur on Torture Theo van Boven described the substantive guarantees that assurances should include at a minimum, including prompt access to a lawyer and to an independent medical examination. He also described the minimum requirements of a monitoring system: that interviews be prompt, regular and privately conducted. Moreover, disclosure in this setting would help institutionalize the Administrations recent reforms. It was gratifying to hear, in the UPR civil society consultation on national security issues and in the governments reports during the UPR process, that many improvements have already been made to the processes and standards relating to assurances, including some recommended by the August 2009 report of the Special Task Force on Interrogations and Transfers. If the Administration disclosed the substance of its improvements and its rationales, a future administration would be compelled to provide some public explanation for any departure from these reforms. Furthermore, disclosure about standards and procedures would make assurances more reliable safeguards against abuse, in several ways: Disclosure of standards would help the U.S. secure more robust assurances, with lesser risk to diplomatic ties. If the U.S. publicly set out minimum standards for reliable assurances and monitoring arrangements, it could press foreign governments to meet these robust standards without implying distrust of the particular officials or governments. If these minimum U.S. standards referenced the guidance of U.N. experts and bodies regarding assurances and standards for torture monitoring and prevention, U.S. demands regarding the content of assurances would appear more credible and acceptable. Disclosure about standards and processes would make foreign governments more likely to honor them. Disclosure about standards would publicly commit the U.S. and the receiving government to a framework of humane treatment guarantees and monitoring. As the United Kingdom has noted, disclosure of assurances frameworks is a powerful deterrent insofar as [f]ailure to comply ...has the potential to do serious damage to diplomatic relations between the countries involved and to the international reputation of the government which is seen not to have complied. At the operational level, disclosure of standards and procedures enables third parties, like human rights groups, to press foreign governments to live up to their commitments to ensure humane detention conditions and access for monitors. Even if the particular assurances were not made public, third parties could base their advocacy on the disclosed baseline standards, and call upon foreign governments to demonstrate compliance. Indeed, the UK government has argued that by disclosing its standards and processes, it enables human rights groups to act as a sort of third-party watchdog. III. Recommendations for Disclosure As the breadth of the Committees request for information makes clear, and as we documented in Promises to Keep, far too much remains secret about U.S. procedures and practices. We recommend that, to be responsive to the Committees request, the Administration provide specific information in its fifth periodic report and make existing reports public, as follows: Describe the Administrations improvements and problems identified in recent practice Make available the August 2009 report of the Special Task Force on Interrogation and Transfers;

 Make available the annual coordinated report on assurances by the inspectors general of the Departments of State, Defense and Homeland Security; Publicly acknowledge and investigate past cases of abuse in transfers pursuant to assurances, with the aim of providing redress to victims and identifying necessary reform, including countries to which individuals should not be sent due to past breached assurances. Describe standards and processes for ruling out the use of assurances Clarify whether the U.S. rules out the use of assurances where torture is practiced systematically (as defined by U.N. standards) or where there are credible allegations that the receiving government has previously breached assurances and relevant country conditions have not changed substantially; Describe, if they exist, the minimum standards for substantive guarantees included in assurances, such as humane conditions of detention, conditions of interrogation and the rights of a transferred individual (transferee) to access, inter alia, lawyers and independent medical exams, and to notice of the charges the transferee faces or the basis for his detention upon transfer; Describe the Administrations review process and protocol where the receiving government refuses to meet these minimum standards (if they exist) or other criteria. Describe methods for ensuring the thorough examination of the merits of each individual case, including through judicial review. Identify under what circumstances the Administration will provide the transferee with notice, the text 5or content of assurances, and the opportunity to respond, particularly in the contexts of deportation and transfer from the Guantanamo Bay detention facility. Describe the Administrations standards, protocols and other methods for effective postreturn monitoring Describe the training and practice of U.S. embassy staff who act as monitors, including their mandates and visitation protocols; Describe the standards by which the Administration assesses prospective third-party monitoring bodies, especially those proposed by receiving governments; Identify the procedures for assessing reports of abuse or breached assurances and the protocol for responding to credible reports, including steps that may be taken to intervene on a transferees behalf or suspend future transfers. In its recent report to the U.N. Human Rights Council, the Administration affirmed its commitment to continue international efforts to eradicate torture.13 As part of this laudable commitment, the U.S. should facilitate a candid and informed dialogue about U.S. policies regarding transfer and torture. We urge the Administration to lay the foundation for such a dialogue by clarifying its policies and practices in its fifth periodic report to the Committee Against Torture, and disclosing the concrete ways that it ensures compliance with human rights standards.

Andrea Gittleman, Physicians for Human Rights (Training Issues) 16(b): Please include information on steps taken to ensure specific training for all medical personnel dealing with detainees in the detection of signs of torture and ill-treatment and

ensure that the Istanbul Protocol of 1999 becomes an integral part of the training provided to physicians and others involved in care of detainees. The Istanbul Protocol (IP) is a great tool that NGOs including PHR have been using to train medical professionals in documenting torture and other forms of ill treatment. We are unaware of any official recognition by the US government about the importance of the IP nor of any official move to align training for medical personnel with this important document. On the other hand, the IP has been recognized by the United Nations, regional human rights bodies, and other countries as the international standard for training medical professionals how to properly document instances of torture. The US government can easily fill this gap. The resources are readily available to fully implement the Istanbul Protocol PHR has been doing these trainings in other countries, and such trainings could easily be done for medical professionals in our military who work in US detention centers. Official recognition of the IP and the importance of training medical professionals to detect and document torture will be an important addition to the changes already made by the Obama Administration regarding the treatment of detainees in US custody. 17: Please indicate the steps taken to ensure that acts of health personnel are in full conformity with principle No. 2 of the Principles of Medical Ethics relevant to the Role of Health Personnel in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. In this respect, please provide information on the participation and role of health personnel in interrogations of terror suspects, including in secret detention facilities. The Bush Administration redefined legal thresholds for torture, which required medical monitoring of the application of so-called enhanced interrogation techniques. Medical personnel monitored interrogation practices and collected medical information that, among other things, was used to assess the susceptibility of the detainee to the practices and develop new interrogation programs. In doing so, medical personnel not only designed, monitored, and participated in torture, but they participated in research and experimentation on detainees in US custody. We call on the Obama Administration to conduct a full investigation of these practices and ensure that all those who contributed to acts of torture are held accountable. The Administration should also establish and adhere to a general policy prohibiting participation in torture and ill-treatment of detainees by medical professionals.

Jeanne Herrick-Stare, Center for Victims of Torture (Army Field Manual) As you know we were all gratified by the Presidential EO of Jan 2009 designating the AFM as the mandatory standard for all U.S. agencies involved in interrogation. As was highlighted during the UPR process by several groups, we remain concerned with aspects of the 2006 AFM, particularly Appendix M, which allows for sleep deprivation and sensory deprivation which we believe can rise to the level of torture or cruel, inhuman and degrading treatment.

However, today I want to focus on the issue of review of the AFM. The AFM requires a periodic review and revision process, which allows for those in the U.S. military and intelligence community to ensure the document responds to the observations and experiences of those using it in the field as well as policy, makes seeking to hone its guidance for clarity and legality. Our understanding has been that the AFM has been reviewed annually by the Army but in light of its expansion to now being an interrogation manual for the whole government it is not clear how input on revision is now being conducted and who is controlling the process. Revision should now be an interagency issue, and the NSC should take leadership and treat it as such. Presently, the revision process is shrouded in secrecy. It would be only a guess as to whether and to what extent the various branches of the intelligence community, those bound by the AFMs provisions, have an active part in its revision. The human rights community with its connection to former interrogators, physicians, attorneys, analysts, and other professionals, could be helpful in making sure that the revision process includes input from these sources. As it is, the NGO community has no means for input other than passing objections and suggestions to the officials at the Pentagon who seem the best positioned to receive them. Most alarmingly, administration officials outside the Pentagon appear to be in the dark about the details of the process, as well. Historically, the Army has had a prerogative for control of the revision process, but this control has not softened in response to the Executive Order.

Therefore, we ask that the Administration 1) Direct and provide for interagency participation in the revision and review process. 2) Direct that there be transparency in delineating the process under which the AFM is revised.

VI. Detention Conditions Cynthia Totten, Just Detention International (Prison Rape Elimination Act) Please contact <CTotten@justdetention.org> directly for in-depth information regarding the PREA. Katrina Anderson, Center for Reproductive Rights (Women in Detention) Question 33: In light of the Committees previous concluding observations, please elaborate on the measures adopted by the State party to ensure that women in detention are treated in

conformity with international standards, as well on the implementation of these measures (para. 33). Furthermore, please provide information on the impact and effectiveness of these measures in reducing cases of ill-treatment of detained women. The number of women in prison is growing at a rate that far surpasses the rate of men, and nearly half of incarcerated women are women of color. Between 6-10% of incarcerated women are pregnant, and most of these pregnancies are unplanned and high risk due to the general poor health of women in prison. o Fewer than half of U.S. jails provide OB/GYN services to assist this high-risk maternal population, and 38 states have no policies on pre-natal care for prisoners. o Women are often denied their constitutional right to abortion, even when they seek one at their own expense. Incarcerated women routinely face treatment that rises to the level of cruel, inhuman or degrading treatment, including the practice of shackling pregnant women during childbirth. The practice of shackling during childbirth has been condemned by the CAT Committee, 1 the Human Rights Committee, 2 the Special Rapporteur on Torture, 3 and the Special Rapporteur on Violence against Women.4 The U.N. Standard Minimum Rules for the Treatment of Prisoners prohibit the practice in all but the narrowest circumstances.5 The U.S. has made some progress on ending the practice of shackling, but much more needs to be done. The 8th Circuit Court of Appeals held in Nelson v. Correctional Medical Services, 586 F.3d 522 (8th Cir. 2009), that a woman has the right not to be shackled during the final stages of labor unless there is clear evidence of a security or flight risk. The Federal Bureau of Prisons policy reflects this standard, and as of June 2011, 13 states have passed laws banning shackling.6 However, three-fourths of states have no policy banning shackling, and 23 state departments of corrections still allow the use of restraints during labor. ICE lacks legally enforceable policies and has yet to adopt draft guidelines to prevent shackling of immigrant women in detention. The current patchwork system of laws, regulations and written and unwritten policies has created an atmosphere of confusion and noncompliance among corrections officials. Recommendations: State and federal governments should ban the practice of shackling in jails, prisons, and immigration detention facilities. Further, the U.S. should take positive measures to prevent, punish, and redress violations to womens reproductive rights. Specifically: Investigate and prosecute authorities that shackle or tolerate this abusive practice, and provide training for correctional officers about shackling as a human rights violation. Ensure that women who have been shackled or subjected to other forms of torture in detention have an adequate federal remedy.

 Adopt policies at the federal and state level to ensure that women in jails, prisons and immigration detention facilities receive the highest attainable level of physical and mental health care, including comprehensive reproductive health services. Adopt independent oversight processes to improve minimum standards of health services and ensure that costs do not prohibit incarcerated women from accessing health care. Address the structural challenges that have led to the severe over-incarceration of women, particularly women of color and immigrants. Jody Kent, Campaign for the Fair Sentencing of Youth (Juvenile Life Without Parole, or JLWOP) PA, CA, MI, FL, LA lead the nation in JLWOP, holding most of the cases. Such discrepancies in use illustrate how this is clearly not a safety issue. Three-dozen people are serving their sentences in the federal bureau of prisons. We urge Congress to pass legislation providing review of all cases of those currently serving JLWOP and issue parole when possible. The Department of Justice has power to influence when JLWOP is used on the federal level and we request they issue policy guidance that requires the Attorney Generals approval to impose a JLWOP sentence. When cases reach the U.S. Attorneys office, we ask them to seek alternatives to JLWOP Shobha Mahadev, Northwestern Family Justice (JLWOP) The Graham Supreme Court case last May held that JLWOP is barred for non-homicide offenses. JLWOP inmates serve time in supramax facilities, although they are often not the worst offenders, and racial disparities persist in implementation of this issue. Connie de la Vega, HRA (JLWOP) Federal government is currently violating this prohibition and should start actively limiting implementation of JLWOP. Jeanne, 10 for 10, an Illinois supermax activism group (Supermax Prisons) Quest 37, 2. There is little information available from the government on what effect supramax prisons have on a person. However, there is wide documentation that this is tantamount to psychological torture when held in a cell for 23 hours a day. Andrea Gittleman, Physicians for Human Rights (Women in Immigrant Detention) 39: Please inform the Committee of steps taken to address the reports of inconsistent and inadequate medical care for immigrant women held by United States Immigration and Customs Enforcement detention system and for HIV-positive immigration detainees. A disperse detention system utilizing a patchwork of contractors and subcontractors results inevitable in inconsistent practices and a lack of overall accountability for the quality and sufficiency of medical care.

ICE has not done enough to standardize a universal set of detention standards there are three different ones currently in use, all of which by their own terms apply different structures to different kinds of facilities The standards promote the message that serious potential consequences must be foreseeable before care must be provided, which eclipses a significant portion of medical care for detainees. Also, these standards provide for privacy and confidentiality to the extent practical which is insufficient, and would create a disparate burden on women detainees. The number of women in administrative detention has soared to 29,000 individuals, three times the number of detainees since 1996. Ten percent of the overall immigrant detention population is women, scattered in facilities designed for men that lack genderspecific services such as access to reproductive and sexual healthcare. Local jails and prisons where these women are typically detained lack services such as treatment for survivors of sexual abuse, OBGYN and pre-natal care, screening for reproductive health system cancers, or even sanitary pads. While ICE has drafted new standards to improve healthcare for detainees, the guidelines are not legally enforceable and leave womens right to health care at the discretion of prison officials. Inadequate and insensitive screening puts survivors of domestic violence, trafficking, and other abuses, in detention when it is otherwise unwarranted. Regarding HIV-positive immigration detainees, medication consistency is key. The lack of standardized electronic health records and the transfer of detainees from facility to facility mean that it is difficult for HIV-positive immigration detainees to continue their regimen of medications during their detention. Jane Zurnamer, National Immigrant Justice Center (Women in Immigrant Detention) (Q.39) Inform the Committee of steps taken to address the reports of inconsistent and inadequate medical care for immigrant women held by ICE and for HIV-positive immigration detainees. In April this year our organization filed a mass civil rights complaint on behalf of 13 gay and transgender individuals detained in immigration custody. These violations occurred against individuals in facilities across the country highlighting the systemic nature of this problem. Moreover, most of the chief perpetrators of the torture or cruel or inhumane treatment are prison officials working at private facilities and county jails that the government continues to contract with despite these serious allegations. Many of those individuals suffer from HIV and reported frequent denial or delay in HIV treatment leading to major health complications. And secondly, of these 13 clients, we saw numerous cases of arbitrary and indefinite detention of immigrants in solitary confinement on the basis of their HIV status. In addition to these violations amounting to a breach of the torture prohibition, these abuses also violate the government's own immigration detention standards, which of course continue to be unenforceable. We hope to see in the U.S. report the government recognizes that it cannot continue to detain immigrants, who are civil detainees, under these punitive conditions. We recommend that the government release individuals from immigration custody who suffer from significant medical or mental health issues. If individuals must be detained, the

government must provide effective, timely medical assistance to immigrants from qualified personnel and end the use of solitary confinement. Tina Minkowitz, Center for the Human Rights of Users and Survivors of Psychiatry (Civil Rights of Institutionalized Persons Act) I'd like to address the need to ensure that CRIPA investigations incorporate the most up to date standards of international law regarding torture and ill treatment. In particular, the July 28, 2008 report of the special rapporteur on torture recognizes that forced or coerced psychiatric interventions and institutionalization can amount to torture and ill treatment, and that these practices are no longer acceptable under international law. I am a survivor of this form of violence as well as an attorney and human rights advocate. I was one of the people who wrote the Convention on the Rights of Persons with Disabilities and I made the presentation that informed the Torture Rapporteur on these issues. Research shows that: 1) Neuroleptics - the psychiatric drugs given most often against a person's will - work by shutting down all spontaneous initiative and desire in the brain, not by treating any specific kind of distress. 2) A majority of people taking neuroleptics develop akathisia, an unbearable sense of physical and psychic anguish. 3) Neuroleptics can shorten life span by up to 25 years. My people are dying and suffering because of this iatrogenic torture. This is a health and human rights emergency. The National Council on Disability made recommendations in the year 2000 for federal government to take measures to completely end forced and coerced psychiatric drugging, electroshock and institutionalization, this has not been done and we are further away than ever. The Center for the Human Rights of Users and Survivors of Psychiatry would like: 1) An opportunity to present information on these issues and our understanding of the 2008 report by the Torture Rapporteur, to Department of Justice (DOJ) personnel working on CRIPA, 2) For DOJ incorporate the new standards into their present work and explore whether to propose new legislation, and 3) For this to be addressed in the U.S. report. We'd also ask the USG to address forced psychiatric drugging of Guantanamo inmates under #38. Jamil Dakwar, American Civil Liberties Union (Corporal Punishment) 19 states still have corporal punishment (CP) legal in their jurisdiction, while many states are abolishing this practice. New Mexico abolished CP last April and Ohio banned

this practice in 2009. In August 2008, the ACLU and Human Rights Watch published the report, A Violent Education: Corporal Punishment of Children in US Public Schools, which documents that many children who are physically punished by administrators and teachers are left injured, degraded, and disengaged from school. In August 2009, we published another joint report, "Impairing Education: Corporal Punishment of Students with Disabilities in US Public Schools." We found that students with disabilities face corporal punishment in public schools at disproportionately higher rates. They made up 18.8 percent of students who suffered corporal punishment at school during the 2006-2007 school year, although they constituted just 13.7 percent of the total nationwide student population. At least 41,972 students with disabilities were subjected to corporal punishment in U.S. schools during that year. These numbers probably undercount the actual rate of physical discipline, since not all instances are reported or recorded. The physical discipline, which often includes beatings, can worsen these students' medical conditions and undermine their education. We urge the administration to include in the report concrete steps taken by federal and state governments to bring an end to the use of corporal punishment in public schools. Aside from the infliction of pain and the physical injuries which often result from the use physical punishments, these violent disciplinary methods also impact students academic achievement and long-term well-being. Despite significant evidence that corporal punishment is detrimental to a productive learning environment, there is currently no federal prohibition on the use of physical discipline against children in public school. In fact, children in some states receive greater protections against corporal punishment in detention facilities than they do in their public schools. Data collection is important not only to document abuse, but also to examine the racial disparities in school discipline and impact of this practice on educational success. Changes to Office of Civil Rights 2009-2010 Civil Rights Data Collection are encouraging. Collected data, among other things, include number of incidents of corporal punishment. We recommend to the administration to provide updated data, highlight not only positive steps taken by some states but to also endorse positive behavior supports (PBS), as endorsed by the Dignity in Schools Campaign. Finally, I would refer the administration to the congressional record of the House Education and Labor Subcommittee on Healthy Families and Communities, which conducted a hearing on corporal punishment in schools and its effect on academic success last year. The ACLU and HRW joint statement is available here: http://www.aclu.org/files/assets/ACLUHRW_Statement_on_Corp_Punish_for_House_Healthy_Families_Subcomm_hrg_FINAL.pdf V. Treaty Administration Issues OPCAT ratification OPCAT Working Group (Just Detention International) In advance of its third periodic review of the U.S., the U.N. Committee Against Torture has questioned the treatment of detainees in U.S. prisons, jails, and other places of confinement. In particular, the Committee has inquired as to the steps the U.S. has taken toward becoming a party to the Optional Protocol to the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Implementation of the OPCATs collaborative approach to monitoring allowing international and domestic entities joint access to detention facilities and the use of confidential recommendations to prevent torture and ill treatment will help ensure that the U.S. meets its obligations under the Convention Against Torture (CAT). The U.S.s continued failure to prioritize ratification of the OPCAT raises significant concerns about the countrys commitment to basic, universal standards against torture. To date, the lack of transparency of U.S. detention facilities has been a major contributing factor to systemic human rights abuses. The Committee Against Torture has cited a number of concerns about past and present policies and practices within U.S. detention facilities that constitute or facilitate torture or cruel and inhuman treatment. These include: the failure promptly and independently to investigate allegations of sexual violence in prisons; the use of brutal interrogation techniques on detainees; the prolonged isolation of some prisoners; the possible secret detention of so-called high value terror suspects; the lack of redress for detainees who are victims of official abuse; reports of inadequate and inconsistent medical care for immigrant women detainees; the safety of juvenile prisoners; the use of rendition to allow torture outside of the U.S.; and, a lack of access to detainees by the International Committee of the Red Cross. We, the undersigned organizations, share these important concerns. We believe that the failure by the U.S. to recognize the need for greater oversight of detention facilities continues to result in violations of internationally recognized human rights standards. Further, we believe that by becoming a party to the OPCAT, the U.S. will greatly strengthen the ability of government and non-government actors successfully to address these concerns. Therefore, we urge the U.S. to become a party to the OPCAT for the following reasons: The U.S. is sorely lacking in external oversight of its detention facilities: There is growing international recognition that prisons and jails must be transparent, and in addition to establishing strong internal accountability mechanisms must be open for external monitoring. Left to their own devices, few U.S. jurisdictions have empowered an external entity, such as an Inspector General or ombudsperson, to respond to inmate complaints and/or to audit facilities. External monitoring helps prevent human rights abuses and encourages officials to follow best practices: Without external monitoring, officials who participate or acquiesce in abuses of those behind bars wield tremendous, unchecked power to cover up such abuses. Further, even the most well-intentioned officials often cannot identify problems within their own systems shortcomings that a neutral outsider can more easily recognize. Confidential proposals from external monitors also provide officials with access to best practices from other jurisdictions. The OPCATs external monitoring will shine needed light on conditions of confinement and facilitate the sharing of best practices. U.S. ratification of OPCAT would not undermine states rights: Countries around the world, including several with federal or decentralized governments, have successfully become parties to the OPCAT. While some argue that the OPCATs oversight system is overly intrusive and violates the Fourth Amendment and other states rights principles, these

arguments are without merit. Other nations, including the United Kingdom and Argentina, are successfully establishing mechanisms that provide independent monitoring of all detention facilities without compromising the rights or interests of local governments. At the most basic level, becoming a party to the OPCAT will help the U.S. fulfill its obligations under the CAT. Failure to do so puts detainees at continued risk of sexual abuse and other forms of torture and mistreatment. The concerns outlined by the Committee Against Torture in advance of the upcoming U.S. CAT review highlight a human rights crisis in U.S. detention facilities; failing to take action to end this crisis is simply unacceptable. This intervention is endorsed by the following groups: Just Detention International, National Religious Campaign Against Torture, American Civil Liberties Union, Physicians for Human Rights, Human Rights First, World Organization for Human Rights USA, International CURE, Womens Refugee Commission, TASH, The Center for NuLeadership on Urban Solutions. Jamil Dakwar, ACLU RUDs It is important for the administration to review all RUDs with a view to withdrawing those that are harmful and unnecessary. The only reservations that should be retained are those that are strictly required because of irreconcilable differences between U.S. Constitution and CAT, particularly where U.S. law provides a higher level of protection. At minimum, the administration should commit to undertake periodic review of RUDs as mandated by President Clintons 1998 Executive Order 13017: Implementation of Human Rights Treaties. It is important to take review and reconsideration of RUDs more seriously than the previous administration, especially in light of the misuse and misinterpretation of RUDs as evident in the Bush administration OLC torture memos. Raha Wala, Human Rights First 48. Please clarify the State partys position with regard to the interpretation of territory under the State partys jurisdiction. Does the State party apply the provisions of the Convention, which have been named as applicable to territory under the State partys jurisdiction to all persons under the effective control of its authorities, of whichever type, wherever located in the world? In its 2006 response to the CAT Committees questions, the United States said the following: The United States does not accept the concept that de facto control equates to territory under its jurisdiction. There is nothing in the text or the travaux of the Convention that indicates that the two are equivalent. However, the United States did not present in its 2006 response any reasoning for why it believes the text or the travaux of the Convention preclude interpreting the phrase territory under the State partys jurisdiction in a manner that would apply key CAT obligations extraterritorially to instances where U.S. officials have effective control over territory or people of concern. To the contrary, Human Rights First, in a recent submission to the Legal Advisor of the State Department, has shown that the strongest reading of the phrase territory under the State partys jurisdiction would apply CAT obligations to territory and persons outside of the United States where U.S. officials exercise effective control. For example, the travaux shows that the

negotiating parties clearly contemplated CAT obligations to apply in situations of occupation. We urge the United States to make clear that key CAT obligations apply extraterritorially, including but not limited to those obligations that arise under Article 16 of the Convention.

Compiled by the US Human Rights Network, June 2011