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Mr. Douglas Johnson
January 6, 2005
January 6, 2005
Re: Judiciary Hearing on the Nomination of The Honorable Alberto R. Gonzales, Counsel to President George W. Bush, to be the Attorney General
Dear Mr. Chairman:
Thank you for the invitation to testify today before the Committee on the nomination of the Honorable Alberto R. Gonzales as Attorney General of the United States of America. I have submitted my written testimony and I would request that my written testimony be accepted for the written record of this hearing.
Historically, campaigns to end torture have focused initially on two national authorities: the president or chief executive and the head of the Ministry of Justice. It is presumed that the president or prime minister has both the responsibility and the capacity to set values and policies that direct how security forces and all government officials operate. The minister of justice or attorney general has three important roles: (1) to establish policies and procedures that diminish the incentive to use torture, such as regulating the role that confessions play in the overall administration of justice; (2) the prosecuting of or other sanctioning of torturers or persons who ill-treat detainees, and (3) the overall responsibility for avoiding impunity. These roles require a clear understanding of what torture is and why it is wrong, as well as very practical ideas on how to prevent its use.
Because of heightened national and international concern about torture and issues that have been raised about this nomination, I have been invited to talk about the experience the Center for Victims of Torture has had addressing these roles and what needs to be done to repair the standing of the United States in the world.
Background on Experience and CVT
The Center for Victims of Torture is a nonpartisan, nonprofit organization established in 1985 as the first specialized institution in the United States to provide rehabilitation to victims of government-sponsored torture and to work for the abolition of torture. CVT has provided care for about 1000 survivors of torture from over 60 countries, including American citizens who were tortured by foreign governments. In 1998, at the invitation of the U.S. State Department Bureau of Population, Migration, and Refugees, we initiated treatment projects in Sierra Leone and Guinea to assist survivors from Sierra Leone and Liberia, adding about 6,500 additional clients to our caseload. I have been CVT's executive director for more than 16 years. What I have learned from our clients and their interactions with our staff of health professionals is the primary basis of my testimony.
In addition, CVT is one of the earliest members of the International Rehabilitation Council for Torture Victims (the IRCT) and a founder of the National Consortium of Torture Treatment Programs (NCTTP). CVT provides technical assistance to 33 U.S. programs for torture survivors and another 17 international torture rehabilitation programs in places where torture has been widely practiced. In September 2004 the Center for Victims of Torture also sponsored an international symposium on New Tactics in Human Rights in Ankara, Turkey, a culmination of nine years of interaction with the global human rights community about new ideas to create more effective strategies to improve human rights, including the abolition of torture. In all, 565 people from 89 nations participated in that symposium.
In making my remarks today, I also draw from my experience as an original member of the Experts Panel on the Prevention of Torture of the Organization for Security and Cooperation in Europe.
Before addressing the heart of my testimony, I would like to make these preliminary comments.
I have notified the Committee's staff that I am not here to take a position on the nomination itself, as it is CVT's policy not to comment on the qualifications of specific individuals for government posts. I have been asked to draw on the expertise of CVT in speaking about the January 25, 2002, memorandum emerging from the White House Counsel and other memoranda and discussions related to torture, as well as their implications for American policy.
I also reiterate that the Center for Victims of Torture is not only a nonpartisan organization, but one that consistently and most consciously has sought to bridge partisan differences to focus on a basic American moral principle, reiterated by President Bush in his June 26, 2004, declaration marking United Nations International Day in Support of Victims of Torture: "Freedom from torture is an inalienable right." We are very proud of our work with Senator David Durenberger of Minnesota in initiating the Torture Victims Relief Act; we worked closely with Senators Paul Wellstone and Rod Grams to achieve the bill's passage in 1998, with the support of many members of this Committee; and we have welcomed ongoing support from Senators Norm Coleman and Mark Dayton, continuing Minnesota's bipartisan tradition of supporting victims of torture.
In 2001, in recognition of our work treating survivors of torture, Attorney General John Ashcroft awarded CVT the National Crime Victim's Service Award.
Despite that bipartisan history, even we have found an increasingly partisan tone during the previous election period regarding the interpretation of the memoranda about torture and the nature and extent of interrogation methods used in Guantánamo, Abu Ghraib, and elsewhere. We believe that Americans do not want to be, and cannot afford to be, partisan about the issue of torture.
In no small part, I decided to appear before this Committee because its Chairman, Senator Arlen Specter, was the primary champion of the 1992 Torture Victims Protection Act, a legislative breakthrough with enormous potential for the prevention of torture as well as the protection of its victims. The TVPA has been broadly welcomed by human rights advocates around the world as a model of a new tactic in the arsenal of torture prevention. I come today to seek continued leadership from this Committee, from the Congress, and from the Administration at a time when basic treaties and other human rights norms have been undermined and, for so many of us in the movement against torture, there has been a disheartening retreat from the clarity of the prohibition against all forms of torture, as well as cruel, inhuman or degrading treatment.
Torture is not a partisan issue. The United States was deeply involved in the process of drafting the Convention Against Torture, during the administrations of both Jimmy Carter and Ronald Reagan. For seven years, U.S. delegates worked to help make the language of the Convention concrete and enforceable. The Reagan Administration submitted the Convention to the Senate in 1988 for its advice and consent. The Administration of George H. Bush resubmitted it to the Senate the next year, and strongly supported ratification. A bipartisan coalition in the Senate worked to ensure ratification. The Senate Foreign Relations Committee voted 10-0 to report the Convention favorably to the full Senate, which considered and supported a package of amendments presented jointly by Senators Helms and Pell. It is an indication of the strength of the consensus about the prohibition of torture that the U.S. has ratified no other human rights treaty so promptly.
Concerns about Official Memoranda Justifying Torture.
Having worked with thousands of survivors from more than 60 countries around the world, we know what torture is and we know firsthand its impact.
Based on this experience, I was asked to address concerns about the memorandum prepared by White House Counsel Alberto R. Gonzales regarding the applicability of the Geneva Conventions, and a series of other memoranda prepared at his direction and distributed as legal positions within various parts of the government, including those by Jay Bybee and the Working Group on Interrogations.
The memoranda not only make errors with regard to the legal prohibition of torture, but grave moral and political errors as well that have high costs for human beings and for the reputation of our nation in the world. They disregard the human suffering caused by torture and inhumane treatment. They are based on faulty premises, even fantasies, about the benefits and payoffs of torture. They created vast political costs for our nation's leadership role for human rights and democracy in the world. What is striking about all of these memoranda is the lack of recognition of the physical and psychological damage of torture and inhumane treatment.
There are approximately 500,000 survivors of torture who have fled to this nation's shores to seek safety and freedom from torture. Although there are different physical symptoms associated with the form of torture they endured, there is a remarkably common pattern of profound emotional reactions and psychological symptoms that transcends cultural and national differences. The affects can include but are not limited to: re-experiencing the trauma, avoidance and emotional numbing, hyperarousal, depression, damaged self-concept and foreshortened future, dissociation/ depersonalization, atypical behaviors such as impulse-control problems and high-risk behavior, somatic complaints, sexual dysfunction, psychosis, substance abuse, and neuropsychological impairment such as the loss of short-term or long-term memory, perceptual difficulties, loss of ability to sustain attention or concentration, and the loss of ability to learn.
The main psychiatric disorders associated with torture are posttraumatic stress disorder (PTSD) and major depression (DSM IV). While it is important to recognize that not everyone who has been tortured develops a diagnosable mental disorder, it is equally important to recognize that for many survivors, the symptoms and aftereffects of torture endure for a lifetime. We know, for example, that survivors of the Holocaust and the concentration camps during World War II have much higher rates of clinical depression and suicide even 50 years after the conclusion of those events. This suffering is not something that time simply heals. We also know that torture can profoundly damage intimate relationships between spouses, parents, children, and other family members, and between the victims and their communities. This level of trauma affects future generations, as again we see higher rates of suicide and depression among the children and grandchildren of Holocaust survivors. These results have been repeated among survivors of other cruel and inhumane treatment.
Through our examination and detailed work with survivors, we have reached conclusions about torture's nature and purpose that we believe to be relevant for the discussion that must take place in our nation about the tolerance or intolerance of torture and any practices that border on it. Torture in the modern world is not, primarily, a tool for gaining information, but rather a political weapon, that uses fear to shape societies.
The Bybee memorandum of August 2002 is particularly egregious and dangerous. The overall tone of the Bybee memorandum restricts the definition of torture so narrowly that it could be used to justify various forms of torture. One of the most problematic conclusions of that memo was the notion that "These statutes suggest that 'severe pain'... would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions--in order to constitute torture."
When I first read this statement, I was reminded of our interactions with Vietnamese reeducation camp survivors who arrived as refugees in the United States in the early 1990s. They had been through horrific experiences that any reasonable person would understand to be torture with regard to direct physical coercion, conditions of malnutrition, and intentionally malevolent prison conditions. Their symptoms were consistent with those of other survivors of torture we had seen from Cuba, Central and South America, Africa and Eastern Europe, and from Cambodia. Yet we discovered that the Vietnamese word for torture literally meant "dying under torment." As they survived and still lived, it stood to reason that in their minds they were not "tortured." They didn't have the concepts within their language to interpret and understand what had happened to them. Bybee's definition for torture appears to be "dying under torment." If we used this definition, the Center for Victims of Torture wouldn't have clients at all.
The second extraordinary claim was that torture occurs only when the intent was to cause pain, rather than that pain was intentionally used to gain information or confessions: "the infliction of such (severe) pain must be the defendant's precise objective." In other words, only when a sadist carried out techniques that lead to organ failure and death can we call it torture.
The American public and the world were shocked by the photos from Abu Ghraib. They remind us that torture is not abstract: It is dirty, intentionally humiliating, often sexual in its content, and degrading for the victim and the victimizer.
These photos were not the first credible reports on the use of torture in the war on terrorism. At least two years previously, the Washington Post reported on incidents of torture and death during interrogations in Afghanistan. Human rights organizations carefully monitored the situation based on highly restricted access, and concerns were raised by, among others, the U.N. Special Rapporteur on Torture. We now know that the International Committee of the Red Cross--the institution assigned the responsibility to interpret and to monitor the Geneva Conventions--had expressed concerns about U.S. practices in interrogation and the hiding of prisoners from their view. Such efforts to avoid ICRC access to detainees are a practice which, in every other circumstance has been accompanied by torture and is usually denounced by the State Department's annual human rights review. Since then, many other internal memoranda have been released to the public indicating that abuses including torture as well as inhumane treatment have been systematically practiced. Perhaps the only truly good news from this sorry situation is the extent to which military personnel and lawyers, members of the FBI, and other government officials have denounced torture and ill-treatment of detainees and have used their influence to try and curb the abuses.
But it is not clear what their superiors did with the information, or whether their valiant efforts were ignored or heeded. It is not encouraging, however, to learn that the abuses continued over time and, in fact, no outside monitor can assure us that they have ended altogether
Part of the problem is that the Bybee memorandum misuses a criminal statute for procedural and administrative guidelines. The discussion on an appropriate definition of torture must distinguish between at least three operative differences:
1. The U.S. statute (18 U.S.C. §§ 240-2340A) implementing the Convention Against Torture must define torture with sufficient clarity to guide prosecutors and judges on issues of proscribed actions and evidence to meet the high standards of proof necessary to convict in U.S. criminal courts.
The December 30 memorandum of the Office of the Legal Counsel of the Justice Department recognizes some of the errors of the Bybee memorandum, in particular the definition of torture as pain equivalent in intensity to pain accompanying serious physical injury such as organ failure or death. It also clearly states that torture is abhorrent to both the American law and values and to international norms. But the new memo is problematic in other ways. It assiduously refuses to provide a broad view of the appropriate standards for conduct of interrogations or detention. In this sense, it does not escape the narrow focus on criminal prosecution that I discussed above. It gives the impression that the Office of the Legal Counsel is not concerned with conduct which qualifies as "cruel, inhuman or degrading treatment or punishment." The Torture Convention and U.S. law prohibit both torture and inhuman and degrading treatment. The memo just says that torture is prohibited and then works with a narrow definition of torture. We need top legal experts also to say what we stand for, not just what we are against. What we stand for is clearly stated in Article 10 of the Covenant on Civil and Political Rights, which we have ratified without reservation: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." The memo is also unclear about whether it applies to Guantánamo, Afghanistan, or Iraq, at a time when we are in great need of clarity on exactly those issues. Finally, the new memo evades the question of whether the President has the authority to order that torture be inflicted. It says it doesn't have to deal with that issue because the President has stated an unequivocal directive that U.S. personnel not engage in torture. But this leaves the impression that the President (or secretary of defense) could change his mind and ignore the limits on torture. But in light of continuing evidence that the President's directive has not been followed in the field, there is still a need for a stronger statement that U.S. and international law prohibit torture and inhuman and degrading treatment and must be followed in all circumstances.
Moral and Political Errors
Among the moral and political errors, the memoranda ignore the fact that torture violates at least three important principles embedded in our Constitution that are such basic American values as to define our very identity. These values include:
1) "One is innocent until proven guilty." Perhaps this is the bedrock of Americans' sense of justice. Its corollary is that one should not be punished until that guilt is established. But there is nothing more punishing than the strategic but sadistic use of pain to force a confession or to gain information. Victims of torture--who tell us that they longed for death--would testify that this punishment is even worse than death. Punishment before guilt is proven must be viewed as anathema to American's values.
2) Punishment must fit the crime, but should never descend to barbarity. Hence, our Eighth Amendment to the Constitution prohibits all forms of "cruel and unusual punishments." This prohibition together with the privilege against self-incrimination in the Fifth Amendment and the prohibition of unlawful searches and seizures in the Fourth Amendment, led to the abolition of the "third-degree" forms of interrogation by the U.S. Supreme Court in the 1930s, a euphemism for torture routinely applied by police before that time. The Bybee memorandum relies on a narrow legalistic interpretation of the Eighth Amendment as applying only to punishment after conviction and therefore leaves open the possibility of using forms of pain prior to conviction. While there may be court decisions to support this extremely narrow perception of the Eighth Amendment, the Bybee memorandum's approach ignores the fundamental and far broader American values which are reflected in the cruel and unusual punishments clause. Further, the Bybee memorandum's approach ignores the first principle and pretends that torture is not an extreme form of punishment, both to the body and the soul of the victim.
3) The most practical tool against torture is the Fifth Amendment to the U.S. Constitution, which protects the accused from self-incrimination ("nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"). Our Founding Fathers did not write this protection to allow mobsters and the corrupt an easy pass to frustrate justice. They recognized that the restriction puts the burden on the state to prove that a crime has been committed. They did so in a time when torture was still a basic tactic of autocratic states to intimidate populations in the name of order. Freedom from torture was one of the key struggles of the 18th-century Enlightenment. Even today, when human rights experts plan campaigns to end torture, they identify the need to limit the importance of confessions in legal proceedings as the single most important action to be taken. Abolishing confessions--self-incrimination--takes away the incentive to use torture.
The Fifth Amendment has been much degraded by Hollywood movies and politicians. That this protection has fallen from popular favor only indicates the degree to which most Americans have felt free from the fear of torture, a freedom that has expanded as our courts have given greater prominence to the Amendment's protections.
Costs to America's Leadership
America has much to be proud of in its leadership on torture over the past two decades. Legislation such as the TVPA has provided new ways for survivors of torture to seek justice and also ways of warning torturers that their impunity has real limits. The U.S. is the single largest contributor to efforts to support the care and rehabilitation of torture victims through the TVRA and other efforts supported by Congress. Congress has actively investigated cases of torture and many members have devoted personal efforts to protect individuals and protest government policies of torture. This Congressional action has set into motion a series of national institutions and policies that have worked against torture, such as the creation of the human rights bureau at State Department, whose annual report regularly reports on issues of torture. I have been asked by State Department officials on several occasions to meet with them and representatives of states that use torture so that the experience of the torture rehabilitation network could come to bear on the discussion. Through our New Tactics in Human Rights program, we have consulted with State on ideas and projects that might help diminish the acceptability of torture in a number of nations. I have been proud to serve on the U.S. delegation to the Human Dimension Meeting of the OSCE and deliver our nation's statement on the prevention of torture.
The costs to America are far reaching, from the disillusionment and fear of individuals, on the one hand, to complications in our ability to conduct foreign policy, on the other.
For CVT clients and other torture victims living in the U.S., there is increased anxiety and a sense of danger to them. They fled seeking safety in a nation known to protect individuals from the abuse of the state. Now they see this guardian engaging in behavior so reminiscent of what happened in their own nation.
Human rights organizations in repressive countries now express fear that they no longer have the assistance and assurance of the U.S. to protect them as human rights defenders from torture. At the recent New Tactics in Human Rights Symposium in Ankara, Turkey, a number of human rights defenders told me that their governments now say that they are only doing what the Americans do. Perceptions of greater vulnerability and fear can reduce the activity of those needed to identify and work to correct human rights abuses in their home countries, including much of the Middle East.
It is not an abstraction for us to say that the August 2002 memorandum received and disseminated by Mr. Gonzales also increases the danger of torture to American citizens. CVT has provided care to American torture survivors--religious leaders, businessmen, tourists--tortured in as diverse locales as Mexico and Saudi Arabia. The struggle to end torture everywhere is to our nation's benefit in an increasingly globalized world.
Yet for those who oppose America, the use of torture proves to them what they thought they already knew about American policy and justifies to themselves the use of extreme violence against American interests and people. It changes their political calculations of what they can get away with and still attract public support for their cause. Torture produces rage and fear, not only with the victims, but in their society.
The memoranda create a global impression that the U.S. rejects world consensus on basic issues, such as human rights. They embarrass the United States and undermine our political credibility on many other foreign policy issues.
What Must Be Done?
In March 2003, President Bush met with the recently appointed U.N. High Commissioner for Human Rights, Mr. Sergio de Mello, in the Oval Office a few months before Mr. de Mello was killed in a terrorist bombing in Iraq. At that time, there were already concerns being raised about the conduct of American interrogations in Afghanistan. I am told that President Bush himself raised the issue of torture, saying that he would never authorize or condone torture as President of the United States. But, he added, that if there were another terrorist attack like the Twin Towers, he would have to explain to the American people why he did not.
This is a terrible burden to bear, balancing effectiveness in performing his duty to protect the American people and holding firm to an important American value. There are voices telling him that this is no burden and offering torture as an effective instrument of policy with minimal moral and political consequences. There are other voices, as in the Gonzalez and Bybee memoranda, that try to relieve the burden by separating the concepts from the reality that is torture. These answers do not relieve the burden, they only increase the temptation.
It is up to all of us, to members of this Senate, and to the U.S. attorney general to be clear that torture is a line we will not cross under any circumstances or for any purpose. It is imperative to U.S. security, the success of our foreign policy and the safety of Americans working and living abroad that the attorney general is in agreement with American values and will use the full scope of American and international law to take a responsible stance in actively denouncing torture and that he will work vigorously to prevent the use of torture and prosecute perpetrators.
To that end I respectfully call on the Senate Judiciary Committee to require a routine report from the Department of Justice on their work to stop and prevent the use of torture including their collaborative efforts with the Department of Defense and the Department of State. I ask that the Committee keep the issue of torture on the forefront of their agenda. America needs you to be vigilant in your questioning and oversight until it is clear in both our tacit and explicit policies and our actions that the U.S. is back on course and is in full compliance with national and international law and American values.
When speaking on the Senate floor in support of ratification of the Convention Against Torture, Senator Nancy Kassebaum said "I believe we have nothing to fear about our compliance with the terms of the treaty. Torture is simply not accepted in this country, and never will be." This is as true today as it was then. Now, let us make it so.