USA
e diritti dopo l'11/9 : relazione preliminare del relatore ONU
di red*
Interrogation of terrorist suspects As a result of an apparent internal leak from the Central Intelligence Agency (CIA), the media in the United States learnt and published information about "enhanced interrogation techniques" used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. Various sources have spoken of such techniques involving physical and psychological means of coercion, including stress positions, extreme temperature changes, sleep deprivation, and "waterboarding" (means by which an interrogated person is made to feel as if they are drowning). With reference to the well-established practice of bodies such as the Human Rights Committee and the Committee Against Torture, the Special Rapporteur concludes that these techniques involve conduct that amounts to a breach of the non-derogable right to be free from torture and any form of cruel, inhuman or degrading treatment.
In a meeting with the Special Rapporteur, the Acting General Counsel for the CIA refused to engage in any meaningful interaction aimed at clarifying the means of compliance with international standards of methods of interrogation and accountability in respect of possible abuses. Despite repeated requests on the part of the Special Rapporteur, the CIA did not make themselves available to meet again with him. In light of this lack of cooperation and corroborating evidence from multiple sources, the Special Rapporteur can only conclude that the conduct of his country visit gives further support to the suspicion that the CIA has indeed been involved, and continues to be involved, in the use of enhanced interrogation techniques that violate international law. He urges the United States to ensure that all its officials and agencies comply with international standards, including the Article 7 of the International Covenant on Civil and Political Rights and, in the context of an armed conflict, Common Article 3 of the Geneva Conventions.
The Special Rapporteur welcomes the revision of the United States Army Field Manual in September 2006. Although this Manual clearly states that acts of violence or intimidation against detainees is prohibited, and that interrogation techniques must not expose a person to inhumane treatment, there are nevertheless aspects of the revised Manual (when compared to the earlier version of the Manual) that cause concern. On the positive side, the revised Manual explicitly prohibits the use of waterboarding, something not expressly prohibited before. Nevertheless, a comparison of the two recent versions of the Army Field Manual could leave the impression that it is not prohibited during the conduct of an interrogation to slap a person being questioned, subject a person to extreme changes in temperature falling short of the medical state of hypothermia, isolate a detainee for prolonged periods, make use of stress positions, and subject a person to questioning for periods of up to 40 hours without sleep. The Special Rapporteur concludes that the Manual should be revised to expressly exclude such techniques.
Rendition, and detention in "classified locations" The Special Rapporteur refers to various sources pointing to the rendition by the CIA of terrorist suspects or other persons to "classified locations" (also known as places of secret detention) and/or to a territory in which the detained person may be subjected to indefinite detention and/or interrogation techniques that amount to a violation of the prohibition against torture, or cruel, inhuman or degrading treatment. These reports suggest that such interrogation techniques may have been used either directly by CIA agents or in their presence. The existence of classified locations was confirmed by the President of the United States on 6 September 2006 when he announced the transfer of 14 "high value detainees" from these locations to Guantánamo Bay. Although the President announced that at that time the CIA no longer held any persons in classified locations, he reserved the possibility of resuming this programme. Since that time, one further high-value detainee has been transferred to Guantánamo Bay and the whereabouts of many others are unaccounted.
The Special Rapporteur emphasizes that there is a difference between "rendition to justice" (whereby a person is outside formal extradition arrangements handed to another State for the purpose of standing trial in that State, and so long as there is no risk of the person being subjected to torture, or being faced with an unfair trial where the death penalty might be imposed), versus "extraordinary rendition" to another State for the purpose of interrogation or detention without charge. Rendition in the latter circumstances runs the risk of the detained person being made subject to torture, or cruel, inhuman or degrading treatment. Furthermore, the removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights.
In addition, the use by the CIA of civil aircraft for the transportation of persons subjected to extraordinary rendition, whether by contract or by the establishment of airlines controlled by the Agency, is in violation of the Chicago Convention on Civil Aviation. Again due to the refusal of the Acting General Counsel for the CIA to engage in any meaningful interaction, and in light of corroborating evidence, the Special Rapporteur concludes that his visit supports the suspicion that the CIA has been involved in the extraordinary rendition of terrorism suspects and possibly other persons. This conclusion is corroborated by the recent findings of the Human Rights Committee and Committee Against Torture in the cases of Agiza v Sweden and Alzery v Sweden in which Sweden was found to violate its human rights treaty obligations by handing over Mr. Agiza and Mr. Alzery to CIA agents in the course of their rendition to Egypt. Immigration and refugee issues A number of troubling developments in the law and practice of the United States concerns the treatment of immigrants, those applying for visas, and those claiming refugee status.
The PATRIOT Act of 2001 amended provisions of the Immigration and Nationality Act, expanding the definition of terrorist activity beyond the bounds of conduct which is truly terrorist in nature, particularly in respect of the provision of "material support to terrorist organizations". The definition captures, for example, the provision by a person of a ransom to have a family member released by a terrorist organization or providing funds to a charity organization that was not then classified as a terrorist organization. The PATRIOT Act provides for the mandatory detention of those suspected of such conduct and a refusal of refugee status for such persons, albeit that the Secretary of Homeland Security has announced a policy of "duress waiver". The Special Rapporteur is troubled by the lack of transparency and judicial remedies in the application of such a waiver to persons some of whom may effectively be victims of terrorist conduct. Furthermore, the REAL ID Act of 2005, an enactment which ostensibly works to prevent the use of false identification and eliminate identity theft, contains provisions concerning the prevention of "terrorists" from obtaining relief from removal. The Act raises the threshold concerning the credibility of asylum claims, and limits appeal rights for asylum-seekers, which is inconsistent with the general principle of providing a claimant with the benefit of the doubt as espoused by the UN High Commissioner for Refugees and applied by many national jurisdictions in asylum cases.
Profiling and community outreach The Special Rapporteur notes with encouragement and as an element of best practice that the Secretary of Homeland Security has openly stated that the application of law and practice by his Department is not to involve racial or religious profiling. The Special Rapporteur nevertheless notes claims that country of origin has been, or may be, used as a proxy for such profiling. It is a significant problem in certain regions of the world that the religious status of persons is wrongly confused with the identification of such persons as potential terrorists. This is a troubling pattern that must be reversed, and the Special Rapporteur recommends that all States, including the United States, ensure that they do not act in a manner which might be seen as advocating this development. The Special Rapporteur is very much encouraged by the initiation of community outreach programs by various governmental agencies including the Department of Homeland Security. Both on its own initiative, and in conjunction with civil society, that Department has initiated a number of programmes aimed both at creating a constructive dialogue with communities, including Muslims, and at explaining Islamic faith and practice to members of the public and state employees.
The alienation of sections of society, and the treatment of groups in violation of their human rights, has been recognized by the international community as constituting conditions conducive to the emergence of terrorism, or recruitment into terrorist organizations. The Special Rapporteur therefore identifies the efforts to reach out to the community as a best practice in the fight against terrorism. Surveillance measures The Fourth Amendment to the United States Constitution guarantees the right of citizens to privacy, albeit that international human rights law accommodates interference with privacy where necessary for legitimate purposes and implemented in a proportionate manner. The United States Supreme Court has held, in the 1972 decision United States v United States District Court, that the Fourth Amendment prohibits the surveillance without a warrant of United States persons, even where this is carried out for national security reasons. Under United States law, the surveillance of United States persons (citizens or permanent residents of the United States) can only occur when authorized by the Wiretap Act of 1968, or the Foreign Intelligence Surveillance Act of 1978 (FISA).
The PATRIOT Act of 2001 expanded the provisions of FISA so that applications for a surveillance warrant need only establish that foreign intelligence gathering is a significant purpose of the proposed surveillance rather than "the purpose" of surveillance, as previously required under FISA. This regime raises a number of concerns. First is the low threshold in the availability of surveillance warrants, which leaves open the possibility for interference with privacy where this is not necessary for legitimate purposes. Next is the fact that the Attorney General's guidelines on the availability of surveillance warrants for the investigation of terrorist and related offences, or the gathering of related intelligence, is classified. Although the Special Rapporteur has been advised by the Department of Justice that these guidelines comply with international human rights law, there is no way of assessing the accuracy of this position, nor is there any transparency to guarantee compliance with the dual requirements of Article 17 of the International Covenant on Civil and Political Rights (ICCPR) to not interfere with privacy and to protect against the arbitrary interference with privacy. It is also relevant that the ICCPR obliges States parties to comply with these requirements not only in respect of citizens and permanent residents, but also in respect of all persons within the jurisdiction of the State. It is furthermore troubling that the use of FISA warrants, which have traditionally been treated as an exception to surveillance conducted under the Wiretap Act of 1968, has increased substantially since 11 September.
Operating outside the scope of the Foreign Intelligence Surveillance Act was a National Security Agency programme of secret surveillance without warrant, authorized by an Executive Order of the President. The existence of this programme apparently came to light as a result of an internal leak. Whereas it is a crime under United States law to undertake surveillance without a court order, the National Security Agency surveillance programme was said to be authorized under an inherent right of the President to authorize warrantless surveillance under Article II of the Constitution. Whether or not that is the case, the use of surveillance techniques without a warrant amounts to an interference with privacy that is not authorized by a prescription by law. The Special Rapporteur therefore concludes that such surveillance is unlawful within the terms of Article 17 of the ICCPR. Following media reports in 2005 exposing the existence of the National Security Agency programme, the United States President acknowledged the existence of the programme and stated that National Security Agency surveillance would in the future be carried out under FISA.
A further development impacting upon privacy rights has been the expanded use of National Security Letters, a form of administrative subpoena facilitating expedited access to records by the Federal Bureau of Investigation and other intelligence agencies. Prior to the PATRIOT Act of 2001, the availability of National Security Letters was restricted to financial records, customer call records, and consumer reports, with the requirement that a certifying officer was satisfied that the subject of investigation was acting on behalf of a foreign power. The Act broadened the type of records accessible under National Security Letters and extended the authority to counter-terrorism investigations. The Special Rapporteur is concerned with the lack of checks and balances in this authority, a matter that fails to properly ensure that there is no arbitrary interference with privacy.
Freedom of the press The Special Rapporteur takes the view that although the criminalization of incitement to terrorism and other serious crime may fall within the scope of lawful restrictions upon freedom of expression as guaranteed by ICCPR Article 19, States should be careful not to use vague terms such as "glorifying" or "promoting" terrorism when restricting expression. The exercise of freedom of expression is a cornerstone of democratic society, and in ensuring accountable governance. It is evident that the freedom of the press, and its ability to bring executive action to light, has been a significant factor in the raising of public awareness and debate on issues central to the promotion and protection of human rights and fundamental freedoms within the United States.
The Special Rapporteur is encouraged, in that regard, by the fact that the Government of the United States has not acted to restrain media interest or publication. The free media of the United States itself has in the years following 11 September operated as a device for ensuring transparency and accountability in respect of the adverse consequences upon human rights of counter-terrorism measures undertaken by the Government. This is a feature of best practice which all countries should aspire to.
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