May 11, 2000 Harold Hongju Koh U. S. Assistant Secretary of State, Democracy, Human Rights & Labor



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MAY 11, 2000
Harold Hongju Koh

U.S. Assistant Secretary of State, Democracy, Human Rights & Labor


William R. Yeomans

Chief of Staff, Civil Rights Division, U.S. Department of Justice
Reply to Questions from the U.N. Committee Against Torture

GENEVA, SWITZERLAND

Mr. Chairman, Mr. Vice Rapporteur, and Honorable Members of the Committee:


It is an honor to appear before you again, with my colleagues, to discuss the questions you and the Committee members asked yesterday regarding the United States' initial report of October 1999 concerning its compliance with the Convention Against Torture and Other Cruet, Inhuman or Degrading Treatment or Punishment. My colleague, Mr. William Yeomans of the Civil Rights Division of the Department of Justice, and I will answer the many questions that were put to us in the order in which they were asked yesterday. Where different Committee members addressed aspects of the same issue, we have sought to give a single and complete answer to those questions. Generally speaking, I will respond to those questions that relate to the responsibilities of the State Department; while Mr. Yeomans will respond to those questions that referred to law enforcement matters, with which the Justice Department is more familiar.
We will begin with the questions put to us yesterday by the Chairman, Professor Burns:
Q: Why was the United States Report delayed? (also Mr. Mavrommatis)
A: At the outset, Mr. Chairman, let me answer the question that both you and Mr. Mavrommatis asked about the delay in filing our initial report. I addressed this question orally at the close of yesterday's session, but wanted to make a more formal response today. As I explained, the task of assembling a comprehensive report to cover a country

of 267 million people requires extraordinary coordination among many agencies and governmental bodies. We must cover the U.S. national government, the fifty states, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, the Northern Marianas, and American Samoa as well as the activities of all of the various federal entities: the Departments of State, Justice, Defense, Labor, Health and Human Services, the Bureau of Prisons, the Immigration and Naturalization Service, etc. We also seek input from non governmental organizations and concerned individuals. It was precisely to address this complex issue of coordination that President Clinton promulgated Executive Order 13107 on December 10, 1998 to create an interagency working group to foster better coordination of such an interagency and state federal process. Our completed report to this Committee followed not long after the creation of this interagency working group, and we expect future reports to follow more expeditiously as a result of this improved process of collaboration.


Q: In the United States, does a person have access to a relative or a doctor upon arrest?
A. Yes. If a person is in need of medical attention at the time of arrest, such

attention is routinely provided. Under the due process clauses of the Fifth and

Fourteenth Amendments of our federal constitution, a pre trial detainee in both federal

and state custody has the right to appropriate medical care, which, of course, includes

access to a physician if warranted. Indeed, judicial interpretation of the Eighth

Amendment to our Constitution provides that state officials cannot exhibit "deliberate

indifference" to a convicted prisoner's serious medical needs, for example, by

intentionally denying or delaying access to medical care or intentionally interfering with

treatment once prescribed.

Under the First and Fourteenth Amendments to our Constitution, all pre trial detainees also have a constitutional right to communicate with friends, relatives, attorneys, and public officials by means of visits, correspondence, and telephone calls, subject to reasonable limitations imposed by security needs. Under the Fifth and Sixth Amendments to our Constitution, pre trial detainees also have a right to contact an attorney.

In our federal system, the Federal Bureau of Investigation observes a strict policy of having parents present whenever its agents are interviewing juveniles.
Q: Why did the United States adopt an understanding of the definition of "torture" under Article I which varies from the definition articulated in the Convention? (also Mr. Yakovlev)
A: We believe that there is no inconsistency between the U.S. understanding and Article I of the Convention. Contrary to the apparent perception of some members of the Committee, where official mistreatment results solely in mental suffering, such mistreatment constitutes "torture" under our understanding of Article I of the Convention so long as it constitutes prolonged mental harm, and is caused by or results from four

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sources: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened infliction or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality.


In our view, this understanding does not modify the meaning of Article 1. Rather, it clarifies that Article by recognizing the reality that torture can   and does   occur through the infliction of mental suffering, while at the same time, providing the precision required by U.S. domestic law. The United States sees no inconsistency, therefore, between its understanding and Article 1. Rather, the United States considers that its understanding of the term "torture" is fully consistent with the definition of that term in Article 1.
Q: Shouldn't the United States maintain a single, comprehensive collation of statistics regarding incidents of torture and cruel inhuman or degrading treatment or punishment?
A: As we note in paragraphs 72 93 of our initial report, this theoretical desideraturn

is very difficult to achieve in practice because of the vast diffusion of criminal justice

authority among the federal government, the fifty states, and the various territories of the

United States. To address the lack of reliable information on incidents of the use of

excessive force by police, Congress in 1994 mandated the collection and annual reporting of data on the subject by the Attorney General of the United States, who has in turn charged the Bureau of Justice Statistics of the Department of Justice and the National Institute of Justice to issue periodic reports on the National Data Collection on Police Use of Force. Other federal sources of statistical information include the annual report of the Federal Bureau of Investigation on "Crime in the United States," the FBI's Uniform Crime Reporting Program, which canvasses some 16,000 law enforcement agencies throughout the country; the Justice Department's National Crime Victimization Survey; and the annual report of the U.S. Parole Commission. At the state and local level, each state has its own uniforin crime reporting and criminal justice information center or

records bureau, and other information is available from the National Center for State

Courts, the U.S. Census Bureau, and the Department of Justice's Bureau of Justice

Statistics. We will inquire with these various entities regarding the feasibility of merging

these various data bases into a single uniform set of statistics.
Q: If the Convention is indirectly already part of U.S. law, why has the U.S. not made its provisions self executing, and therefore available to individuals to use before U.S. courts?
A: First, the United States' declaration that various articles of the treaty are non self­executing is not a reservation, but simply a declaration about how the treaty's terms shall be implemented as United States domestic law. The declaration does not limit US

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international obligations under the Convention. It simply means that, as a matter of United States domestic law, the Convention cannot, in and of itself, provide a private cause of action in US courts. Nothing in the Covenant requires States parties to make it self-executing under their domestic law. Indeed, Articles 2 and 4 specifically leave it up to State parties to determine how best to implement their obligations under the Convention. The real question is not whether the Convention should or should not be self-executing, but whether the obligations accepted by the United States in adhering to the Convention are, in fact, fully guaranteed by domestic law to people within the United States. As our initial report made clear, those obligations are in fact fully guaranteed by U.S. law.


Q: Why does the U.S. construe Article 3 to require proof that it is “more likely than not” that someone will be returned to conditions of torture differently than the Convention as interpreted by the Committee?
A: Under U.S. law existing at the time of ratification of the Torture Convention, an individual could not normally be expelled or returned to a State where his “life or freedom would be threatened . . . on account of race, religion, nationality, membership in a particular social group, or political opinion.” The US Supreme Court had interpreted this provision—derived from Article 33 (the “non-refoulement provision”) of the 1951 Convention Relating to the Status of Refugees—to mean that a person entitled to its protections could not be deported to a country where it was more likely than not that he would be persecuted. Insofar as Article 3 of the Convention Against Torture extended the prohibition on deportation and removal under US law to all cases of torture—even if they did not involve persecution on one of the five listed impermissible grounds—the “more likely than not” understanding ensured that the Article 3 protection against non-return to conditions of torture would be applied in a manner consistent with existing U.S. law regarding non-refoulement (non-return) to other forms of persecution. To ensure consistency, this interpretation was similarly extended to cases of extradition to conditions of torture. Yesterday, the Chairman suggested that under Article 3, by analogy to common law tort law, the issue should be whether there is a “real risk” that a person might be returned to torture, and that a “real risk” might be determined by less than a probability. With respect, I should point out that the evidentiary standard of proving a common law tort is also “more likely than not.”
Q: Given the U.S. understandings concerning the definition of “torture,” how does the United States address questions of command and control?
The U.S. understandings to Article I are consistent with the scope of the Convention, which is limited to torture “inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.” Thus, the Convention clearly applies to torture that occurs in the context of governmental authority, and excludes torture that occurs as a wholly private act. To use terminology used elsewhere in U.S. law, the Convention applies to torture committed “under color of law.”

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Q: Article 5 requires States to establish universal jurisdiction over torture. If a non-US citizen commits torture abroad, and he is later found in the United States and no country requests his extradition, can the United States prosecute him for torture? Or, if extradition were requested, and the United States declined, could the United States still prosecute the individual for torture?

A:

A: The answer is yes in both cases. The United States has criminal jurisdiction over

the crime of torture committed abroad by any official, irrespective of nationality, if that

person is later found in the United States. Chapter 18 of the United States Code, 18 U.S. C 2340A, provides, to relevant part:



"Whoever outside the United States commits or attempts to commit torture [as defined elsewhere in the Act in a manner consistent with U.S. obligations under the Convention] shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction There is jurisdiction over the activity prohibited in subsection (a) if--

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender."

I should also note that since the landmark case of Filartiga v Pena-Irala, 630 F.2d 774 (2d Cir 1980), based on the theory of the "transitory tort," the United States federal courts have exercised civil jurisdiction under the Alien Tort Claims Act of 1789, 28 U.S.C. sec. 1350, over suits by alien plaintiffs against alien torturers based on acts of torture committed outside the United States. See United States Initial Report, paras. 277-280.

Q: Has the United States responded to all of the past communications addressed to it from the Special Rapporteur on Torture?

A: We apologize to the Special Rapporteur for the time that it has taken us to respond to his communications. Further, I wish to emphasize that we fully support his work. Nevertheless, I am pleased to report that we have completed a detailed response to his November 1998 communication, which includes detailed answers to all of the Special

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Rapporteur's prior communications. As we speak, that response is being formally communicated to the Special Rapporteur by the United States Mission here in Geneva and will be supplied to this Committee under separate cover. We also now have under

xamination the November 1999 communication from the Special Rapporteur, for which I assure you a more timely response will be provided.



Q: Why do tasers (immobilizers), stun guns, and stun belts not constitute torture or cruel, inhuman or degrading treatment or punishment?

A: The Civil Rights Division at the Department of Justice has sought stringent restrictions on the use of electro-shock weapons in both law enforcement agencies and corrections facilities, as well as increased training for officers using such weapons. The use of such restraints does not violate constitutional standards per se. Used appropriately, stun belts and stun guns can be effective tools for law enforcement under limited and closely regulated conditions to which the use of force is warranted due to the actions of a prison inmate or suspect whom an officer is justifiably attempting to detain or arrest. These devices are not designed to punish, to the contrary, they often reduce violence by serving as an effective, non-lethal alternative where deadly force would otherwise be justified to protect the lives of officers or bystanders.

The Justice Department's Bureau of Prisons ("BOP") currently maintains only fifty-one custody control belts (stun belts) in the entire country. These belts are used only when transporting maximum custody inmates and must be authorized by the warden of a high or administrative security level institution or his or her designee BOP regulations specify that these belts may only be used to prevent escapes or to prevent the loss of life or grievous bodily harm. Furthermore, custody control belts will only be utilized by the BOP when it has been determined that an inmate requires greater security than is afforded through conventional restraints and the inmate has no medical condition that would preclude the use of a control belt, We are advised by the BOP that, as of April 2000, there had not been a single incident in which the custody control belt was actually activated by BOP staff.

Q: What is the U.S. government doing to address the appearance of impunity and lack of police accountability which has arisen from the apparently small number of prosecutions by the federal government of police officers each year on charges of police misconduct? (also Mr. Yu)

A Criminal prosecutions by the federal government are only one part of what the U.S. government and the nation as a whole are doing to combat police misconduct. State prosecutors across the nation are engaged in efforts to combat misconduct in their jurisdictions, through criminal prosecutions, and more effective oversight. Local police forces themselves are working to improve accountability through training, enhanced discipline practices, citizen complaint procedures, and improved communication with their communities.


The Justice Department is combating police misconduct m four specific ways. First, at any given time, we are investigating several hundred individual allegations of police misconduct for violations of criminal civil rights laws around the country. For example,


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we brought the successful federal prosecution involving the beating of Rodney King after acquittals in state proceedings in Los Angeles. Since 1993, we have criminally prosecuted more than 300 law enforcement officers for willful violations of constitutional rights.

Second, the Civil Rights Division at the Justice Department brings civil suits alleging patterns or practices of police misconduct such as the use of excessive force, the failure to adequately discipline and tram officers, and racial profiling resulting from systemic management failures. We were given this authority by Congress m 1994.

We have reached agreements with the police departments in Pittsburgh, Pennsylvania, the state of New Jersey, Stubenville, Ohio, and Montgomery County, Maryland concerning use of force, racial profiling and other constitutional violations. We are currently investigating a number of other police departments including Washington, D C; Los Angeles, California, New Orleans, Louisiana, and, New York City. The investigation of the NYPD includes examination of that Department's Street Crime Unit, the division involved in the shooting of Amadou Diallo.

The third way the Justice Department has worked to bring about change in law enforcement is through employment discrimination litigation. Over the years, we have brought hundreds of lawsuits that have helped lead to long-term change in the racial and gender composition of our nation's law enforcement departments.

Combating employment discrimination also helps us combat police misconduct. Police forces that reflect the diversity of the communities they serve are better able to form positive working relationships with community members, leading to more effective -- and less combative -- law enforcement. When someone who grows up in a neighborhood becomes an officer there, there is less fear and mistrust, and less misconduct.

Fourth, the Department of Justice has many programs that support the concept of community-oriented policing. We are augmenting our enforcement efforts with outreach and training programs in which we have brought together police departments, union leaders, community groups, and experts to develop best practices and to make recommendations so that problems can be avoided.

Q: Why was the Peruvian official Ricardo Anderson Kohatsu permitted to return to Peru following his recent trip to the United States?

A In March 2000, Ricardo Anderson Kohatsu, a Peruvian official, traveled to Washington, D C , U.S. A as a member of a Peruvian delegation to the OAS Inter-American Commission, an organ of the Organization of American States, to testify on behalf of Peru at a hearing of that international organization. Based on the circumstances of his travel and the specific provisions of the 1975 Agreement between the United States and the OAS on privileges and immunities of member state delegations, the Government

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of Peru asserted a claim of immunity from arrest on Mr. Anderson's behalf and sought permission for Mr. Anderson to depart the United States. Based on the advice of the Legal Adviser of the State Department, the United States Government concluded that its treaty obligations to the Organization of American States required the United States to honor that request.

Q: The Chairman also asked whether it would be possible for the United States to pass federal legislation regarding torture.

A: Enactment of federal legislation regarding torture is not only possible, but indeed it is an historical fact in the United States. Since the beginning of our Republic, Article I, Section 8, Clause 10 of our Constitution has granted Congress the power to punish piracies and offences against the law of nations Under this provision, not only has the

U.S. Congress enacted legislation creating criminal jurisdiction over torturers present in the United States who committed acts of torture abroad (as noted above), it has also enacted the Torture Victims Protection Act of 1992, which creates a civil remedy for any person - U.S. citizen and alien alike - who has suffered torture abroad and the Torture Victims Relief Act of 1998, which provides relief to victims of torture residing in the United States.



Q: Why has the United States declined to extradite Emmanuel Constant, a Haitian citizen, back to Haiti even though the Government of Haiti has requested his extradition?

A: In the case of Emmanuel Constant, the Chairman's question is based on a misunderstanding of fact. As of the present, the United States Government has never received any request for Mr. Constant's extradition from any government, including the Government of Haiti. The United States is aware of reports that Mr. Constant committed acts of torture in Haiti, and the United States emphatically has no interest in harboring torturers. However, based upon the facts as publicly reported, it appears that the only ground for exercising independent criminal jurisdiction over Mr. Constant m the United States would be under 18 U.S.C. section 2340A, which was enacted on April 30, 1994. Because the acts of torture abroad alleged to have been committed by Mr. Constant would have taken place before this law's enactment, the prohibition in the Sixth Amendment to the U.S. Constitution against the retroactive application of criminal statutes (i.e, ex post facto laws) might well stand as a bar to his prosecution.

Q: Can the U.S. confirm that there have been no extraditions for torture since submission of its report?

A: Yes. To the best of our knowledge, since the submission of the U.S. Report to the Committee Against Torture in October 1999, we know of no requests for the extradition of a person for the offense of torture.

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Q: Are medical students in the United States trained to recognize the indicia of torture and techniques for treatment of victims of torture?

A: Although we are not aware that such training is a required part of any medical school curriculum, medical schools throughout the United States offer electives in the area of health care and human rights. Prominent programs exist at the Harvard School of Public Health, Yale University Schools of Medicine and Public Health, and other medical and public heath schools throughout the country. Part of the instruction received in these courses covers issues related to those identified by the Chairman. NGOs in the United States, such as the Center for Victims of Torture in Minnesota, Doctors of the World, and Physicians for Human Rights, advocate and assist in providing instruction in these areas. We also understand that Professor Jack Saul of the New York University Medical Center has a clinic for Torture Survivors which teaches medical students and doctors how to diagnose and treat torture victims, as does Dr Douglas Shenson of the Montefiore Medical Center in New York city. Their work may be the beginning of a standard curriculum for American medical students on the subject. The United States strongly applauds the development of training programs along these lines

Let me now turn to the Questions of the Vice-Rapporteur, Mr. El Masry:

Q: What is the U.S. doing to abide by the United Nations Minimum Rules with regard to the questioning and detention of juveniles? (also Mr. Burns, Mr. Rasmussen, Mr. Yu)

A: The Federal Bureau of Investigation has a policy of having parents present while its agents are interviewing juveniles The Supreme Court protects juveniles with the same privileges against self-incrimination that are provided to adults. Thus, while there is no specific constitutional or statutory right to have a juvenile's parent present before a statement made by a juvenile could be admitted into open court, as with any statement admitted against a witness in a criminal case, an inquiry would be made as to the voluntariness of the juvenile's statement Any such inquiry would take into account the age and maturity of the individual making the statement.

With regard to the detention of juveniles, as a condition of receiving federal grants or funding, states must hold Juveniles who are being processed in the juvenile justice system separately from adults. Thus, it is the general practice in the states to separate juveniles from adults both m pre-trial facilities and in prisons.

In the federal system, juveniles are never housed with adult offenders. While in limited circumstances juveniles can be convicted of federal offenses, the Federal Bureau of Prisons contracts such cases with state and local agencies, and private corrections firms that house
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juvenile offenders. This process facilitates maintaining close family ties. The federal prison system has only one institution which confines a limited number of juvenile offenders. That facility, the Metropolitan Detention Center in Guyanabo, Puerto Rico, maintains strict separation between juvenile and adult offenders.
The Immigration and Naturalization Service does not detain juveniles together with adults. INS uses juvenile facilities that are licensed by an appropriate authority at the local, State, or Federal level and specially trained INS personnel inspect each facility on an annual basis to help ensure that all facilities are in compliance with INS’ requirements for housing juveniles.
The Chairman also expressed concern over the housing of juvenile inmates on death row. Under the law of some states, persons aged 16 and above may be sentenced to death where the nature of their crime requires they be tried as an adult. In some circumstances, these individuals will be housed on death row after they have been tried, convicted, and sentenced to death. However, it is important to recognize that while these inmates may be under the age of 18, under U.S. law, the nature of their conduct warrants a determination that they clearly have reached the age of majority in advance of their eighteenth birthday, and, therefore, should be tried, convicted, sentenced and imprisoned as an adult.
Q: Has there been an evaluation of the use of restraint procedures such as restraint chairs and shackles? (also Mr. Yu)
A: Restraint devices are used in settings such as hospitals and nursing homes for patient safety reasons in addition to their use in jails and prisons. Such devices should only be used to keep an inmate from hurting himself or others, when less restrictive means of controlling the inmate have failed. They are not designed as punishment, but rather as an effective means of short-term control of a suicidal inmate or one who is engaging in self-mutilation, for example, until such time as a mental health professional can be brought to the scene. Unfortunately, we have uncovered circumstances in which jails and prisons were using restraint chairs or four or five-point restraint on a bed for excessive time or when other less restrictive methods of preventing harm had not been attempted. The Department of Justice condemns such use and has sought to remedy it when we have uncovered such practices.
The U.S. Constitution does not permit use of restraint as a means of punishment or for purposes of interrogation, and we seek to eliminate such uses when we find them.
Prior to adopting the use of restraint chairs, the Federal Bureau of Prisons (BOP) implemented a pilot program to evaluate their effectiveness. Use of the restraint chairs was determined to be beneficial for the specified, limited purposes of short-term transportation.

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With regard to Mr. Yu's question about allegations that women in labor have been restrained through the use of shackles, we do not have specific knowledge of instances where restraints have been used on women-prisoners in labor. We are, however, aware of Amnesty International's unconfirmed allegation that restraints have been used in unidentified facilities. If provided with specific, reliable information of such incidents, we would be willing to investigate these incidents further.

Q:

Is it true that 11 people have died in restraint chairs?

A: We acknowledge that there have been deaths reported from improper restraint practices in health care facilities, and these may have been some m jails and prisons as well We have been working aggressively to uncover full information on those incidents. Last year the Senate Appropriations Committee's Subcommittee on Labor, Health, Human Services, Education, and Related Agencies held hearings on this subject, and the Health Care Financing Administration has been working on improving the use of restraints in health care facilities receiving federal funding.

Q: Are people interrogated in restraint chairs?

A: It is unconstitutional to interrogate people in restraint chairs. If the Civil Rights Division of the Justice Department found that a law enforcement entity was using restraint chairs as part of its interrogation process, we would seek to stop the practice. To the best of our knowledge, this issue has not arisen in any of our enforcement activities.

Q:

Have juveniles been put in restraint chairs?

A: In our investigations, the Justice Department has found some juvenile facilities that do, in fact, use restraint chairs. In those cases, we have required to our remedial agreements that such devices never be used for punishment and only be used to control youths who are dangers to themselves or others after less restrictive means of control have failed. We have required that youths restrained in chairs must be constantly monitored, with frequent checks by supervisors, and must be removed from the restraints as soon as they have regained control of their behavior.

Q: The Committee expressed concern about so-called "supermax" prison facilities. What are the procedures used to commit persons to supermax facilities? What are the procedures for being transferred out of these facilities? Are there complaint mechanisms accessible by supermax inmates? (also Rasmussen)

A: For certain violent inmates, supermax facilities have proven to be a necessity for United States law enforcement However, where federal facilities are concerned, use of such facilities is scrupulously controlled. Prisoners are screened and monitored for mental illness, opportunity for exercise is provided, and classification systems are in place so that confinement is not indefinite and that prisoners meeting certain criteria are transferred to less structured settings where appropriate.
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An example of one such federal facility is the Administrative Maximum Security Institution (ADX) in Florence, Colorado. The mission of ADX Florence is to confine inmates with chronic behavioral patterns or management issues that cannot be addressed in any other facility. It is used only for inmates who have shown they are incapable of functioning m open penitentiaries. The procedures for designating inmates to ADX Florence may be found in the Bureau Program Statement No 5100 07, Security Designation and Custody Classification Manual, which is available on the Internet at www bop gov.

The ADX contributes to safe and secure operations in the Bureau of Prisons' other institutions by concentrating m one facility those inmates presenting very serious security and safety risks. Most inmates housed at the ADX were transferred from other Federal institutions because of their highly dangerous behavior while incarcerated. The primary reasons for transfer to the ADX include the following:

• murder or attempted murder of another inmate;

• serious assaults on staff or other inmates; or

• escape or attempted escape from other BOP facilities.

Some inmates present an extraordinary threat to public safety by the nature of their offenses or previous criminal histories. The Bureau of Prisons reserves the discretion to ensure public safety by placing those inmates at the ADX. Additionally, several recent domestic and international terrorism convictions have resulted in court recommendations for the direct placement of inmates in the ADX. These judicial recommendations are considered by the Bureau, but the final determination of placement lies with the Bureau of Prisons, based on the above criteria.

Prior to referring an inmate to the ADX, designation to another high security institution is considered first. If transfer to another institution is not appropriate, Wardens refer the designation request to their respective Regional Director. If approved, the
recommendation is forwarded to the North Central Regional Director (the ADX is located within the Bureau's North Central Region).

A referral for ADX designation will include:


  1. A memorandum from the Warden to the appropriate Regional Director with the specific rationale supporting the institution's recommendation;

  2. Copies of all disciplinary reports, investigative materials or other official documentation related to the behavior prompting the referral;

  3. A current Progress Report;

  4. A copy of the inmate's latest Presentence Investigation Report;

  5. A recent psychiatric or mental health evaluation; and

  6. A memorandum from the Regional Director recommending the referral.
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Inmates currently diagnosed as suffering from serious psychiatric illnesses are not referred for placement.



Very few inmates serve their entire sentences at ADX Florence, most will return to the general population at other penitentiaries after progressing through a stratified housing program. This program, designed around general populations, intermediate, transitional and pre-transfer units, allows inmates to function in progressively less structured environments as they demonstrate more responsible behavior.

With regard to supermax facilities operated by state correctional agencies, many states have modeled their supermax facilities after the federal ADX facility, and we anticipate that most states will follow the federal example in the future. The Civil Rights Division of the U.S. Department of Justice monitors conditions at state facilities and actively investigates credible allegations of mistreatment Indeed, as noted in our presentation yesterday and in our report, one such investigation resulted in the institution of remedial measures at a facility in Maryland to require the provision of adequate medical and mental health care to inmates.

Q: Given the fact that prison investigations are done in the first instance by the prison itself, are U.S federal courts not the only effective means of oversight of prison practices? Does the United States intend to create independent review mechanisms to review complaints & monitor conditions?

A No to both questions. In our judgment, an independent review mechanism to review prison complaints and monitor prison conditions is unnecessary, and would needlessly replicate the work of the Federal Bureau of Prisons, the National Institute of Corrections, the Department of Corrections in the fifty states and in the territories, the work of the Civil Rights Division of the Department of Justice, not to mention the many private entities who monitor prison conditions, including the American Correctional Association, which accredits prisons and jails. State and federal courts have also engaged in extensive oversight in prisons in response to lawsuits brought by government agencies, as well as inmates, both individually and in class action litigation.

Q: Why does the Prison Litigation Reform Act not conflict with Article 1 of the Convention? Is the requirement that a prisoner must show physical injury to receive a remedy for mistreatment compatible with either the Convention or the 8th Amendment of the U.S. Constitution? Also, Mr. Yakovlev noted that under the Prison Litigation Reform Act, a prisoner must exhaust administrative remedies before suing for unconstitutional conditions. How do you respond to the argument that this is an unreasonable barrier for prisoners to overcome?

A: The Prison Litigation Reform Act (PLRA) requires a physical injury as a predicate to an award for monetary relief for unconstitutional conditions of confinement in a federal lawsuit filed by an inmate. However, prisoners who have suffered non-physical injuries that result from violations of their constitutional rights can still sue m federal court to 13




obtain a full range of injunctive relief. For example, prisoners may obtain injunctions requiring a smoke-free environment, adequate fire safety and sanitation and environmental conditions without having suffered physical injury. Many such inmates will have the option of seeking monetary relief in state courts.

With respect to Mr. Yakovlev's question, all prisons have prisoner grievance mechanisms. The requirement that a prisoner exhaust administrative remedies provides a means for the correctional facility to provide appropriate relief m the first instance, perhaps obviating the need for judicial action. If the administrative mechanism provided by the prison fails to remedy the alleged violation, the prisoner may still bring his or her case to federal court In the federal prison system, roughly twenty percent of grievance complaints are resolved m favor of the inmate, making court action unnecessary.

Let us now turn to the Questions of Mr. Camara.

Q: Art. 27 of the Vienna Convention on the Law of Treaties states that a state party to a treaty cannot rely on internal difficulties to excuse its failure to fulfill international obligations that it has assumed Is the United States acting in accordance with this principle?

A: Yes. We agree entirely with the Committee's restatement of this basic principle of treaty law. The United States' statement about federalism in its general reservation to the treaty does not, and is not intended to, exempt the United States from ensuring that both state and federal law is in compliance with US obligations under the Convention.

Instead, it concerns the steps to be taken domestically by state and federal authorities to give effect to US obligations under the Convention.



The United States has a federalist system of government, with a federal government of limited powers. Those powers not delegated to the federal government are expressly reserved for the states and the people under the Tenth Amendment to the US Constitution. So, while the federal government cannot dictate the basic form or internal workings of state government, it can establish and enforce uniform standards for the respect of the right to be free from torture and cruel and unusual punishment, which could include direct invalidation of any offending laws at the state level under the Supremacy Clause, Article VI of the Constitution. To make this point explicit, the United States instrument of ratification specifies that "to the extent that constituent units [of the United States] exercise jurisdiction over such matters, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Convention."

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Q: How does the U.S. respond to the argument that the only permissible reservation to the Convention is pursuant to Article 28, i.e., with respect to the competence of the Committee to receive state-state complaints under Article 20? (also Mr. Gaspar)

A: With respect, we must take issue with this interpretation of the Convention. Under the Vienna Convention on the Law of Treaties and the Permanent Court of International Justice's Advisory Opinion regarding Reservations to the Genocide Convention, a state party may condition its ratification of a multilateral treaty unless the instrument itself prohibits reservations or such a condition would defeat the object and purpose of the treaty, as viewed by other parties to the multilateral convention. We note the Convention Against Torture does not prohibit reservations, and no state party to the Convention has adopted Mr. Camara's interpretation.

Q: What kind of treatment is received by asylum seekers? Are they held in prisons with criminals? Is there a restriction on their work authorization and general freedom of movement? Are they placed in high-security facilities? (also Mr. Burns).

A: The Immigration and Naturalization Service (INS) strives to ensure that all aliens in detention, regardless of whether they have made asylum claims, are treated humanely. The INS is committed to providing a safe, secure, and humane environment for all detainees. The INS does not automatically release an alien upon the filing of an asylum claim in order not to encourage fraudulent claims, which often can contribute to skepticism regarding meritorious asylum claims However, being sensitive to the special circumstances of legitimate asylum seekers, INS policy favors release of any alien who is found to have a credible fear of persecution, provided that the alien's needs would be met following release.

The INS seeks to house all detained asylum seekers in INS-run facilities, where it has a policy of housing non-violent detainees apart from criminal aliens and where it has greater control over the facilities. Where there is no available bed space in INS facilities, the INS seeks to ensure that non-violent detainees are afforded an environment free from harassment or fear from others who have a history of violence. To achieve this goal, INS uses a classification system that takes into account information relevant to a detainee's potential for violence. This technique, along with proper supervision and special housing, has proven effective.

When an asylum-seeker is released, his freedom of movement is generally not restricted, except that he is required to keep the INS appraised of his location, to appear for any immigration proceedings, and to comply with any conditions placed on his release, such as periodic reporting to the INS. He may not be granted work authorization based on the asylum application until he is granted asylum, or until 180 days have passed without a decision on the asylum application. This is a relatively new provision, adopted by asylum reform measures in 1994. From 1990 to 1994 (when a person who applied for asylum

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was automatically granted work authorization), more than 425,000 asylum applications were filed m the U.S. , and many of those were determined to be frivolous. These frivolous claims, often filed solely to obtain work authorization, overwhelmed the asylum system. Under the 1994 asylum reforms, genuine asylum seekers are quickly identified and granted protection, and incentives for abuse have been minimized.

Let us now turn to the unanswered questions of Mr. Gaspar:

Q: How can the U.S. comply with the CAT if prisons are operated by private compames? (also Mr. Burns).

A: The fact that a correctional facility that houses state or local inmates is operated by a private company m no sense insulates that facility, or its employees, from scrutiny under our federal constitution or statutes State and local contracting agencies are ultimately accountable for conditions m institutions housing individuals m the state's legal custody The individuals operating the facility become state actors for these purposes.

This point is made clear by the fact that a number of the Civil Rights Division's cases pursued to protect the constitutional rights of prisoners have involved private providers who house or otherwise provide services to individuals in the custody of states or local subdivisions. Most recently, for example, we obtained extensive relief involving a private juvenile facility m the state of Louisiana.

In short, a corporation that operates a prison facility under a contract with the state is subject to the same liabilities under federal law as a public facility. Thus, a prison official working m a private facility that contracts with a state to house state prisoners is subject to prosecution under federal criminal civil rights laws for misconduct, including the use of excessive force and racial discrimination.

Q: Is the use of chain gangs permissible m the United States? (also Mr. Yu)

A: Absent injury or other harm, chain gangs are not per se unconstitutional. Nevertheless, the use of chain gangs m prisons m the United States is rare. Most chain gang work involves highway cleanup and maintenance projects. Participation is frequently on a volunteer basis. In order to determine whether the particular use of a chain gang violates the Constitution one would need to review the kind of work and conditions of work for prisoners on chain gangs to determine whether the conditions fall below those required by the 8th Amendment's protection against cruel or unusual punishment.

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Q: We understand that under U.S. immigration law, a person could arrive in the U.S. as a child, and then be subject to deportation many years later. Why does this not violate Article 16?

A: Article 16(1) generally requires that States Parties undertake to prevent in their territory state sanctioned acts of cruel, inhuman, or degrading treatment or punishment. Article 16(2) further specifies that the provisions of this Convention do not prejudice the provisions of other international or domestic instruments prohibiting such treatment or punishment, or relating to extradition or expulsion Under some circumstances a person who arrived in the U.S. as a child may be subject to removal many years later if he has not become a U.S. citizen and if, for example, he engages m criminal activity that makes him deportable. This does not violate U.S. obligations assumed under either provision of Article 16.

The INS takes care to ensure that the proceedings to determine whether an alien is removable, any detention incidental to those proceedings, and the removal process itself are all administered in a humane fashion. Further, the proceedings to determine whether such an alien is in fact removable incorporate mechanisms to ensure compliance with all domestic and international legal provisions relating to expulsion. For example, there are opportunities within these proceedings for an alien to seek, and where necessary to be granted, protection from removal under Article 3 of the CAT and under Article 33 of the Refugee Convention.

We now turn to the as-yet unanswered questions posed by Mr. Yakovlev:

Q: How does the United States explain the failure of the Illegal Immigration and Immigrant Responsibility Act of 1996 to identify fear of torture as a ground for not returning a person to his country of origin in light of this requirement under the Convention?

A: This is not a gap in United States law. Immediately upon the entry into force for the United States of the Convention, and prior to the adoption of formal regulations by the Immigration and Naturalization Service (INS), the INS adopted a comprehensive interim administrative process to assess the applicability of Article 3 to individual cases of aliens subject to removal. Under this process, if there were reason to believe that an alien would be tortured in a particular country after all removal proceedings had been completed and before a final order of removal was executed, the INS would consider whether Article 3 prohibited the alien's removal to that country. The INS took an inclusive approach to identifying cases to be examined under Article 3, allowing aliens to raise this issue at any point in the removal process. If an alien or his attorney or representative requested protection under Article 3 or expressed a fear of torture at any time before removal, the INS assessed the case under Article 3. In addition, the INS worked with the United Nations High Commissioner for Refugees to develop an informal process under which that agency could bring to the government's attention cases which it believed raised issues under Article 3. 17




On October 21, 1998, President Clinton signed into law a bill which required "[n]ot later than 120 days after the date of enactment of this Act, the heads of appropriate agencies [to] prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained to the United States Senate resolution of ratification of the Convention ". Accordingly, the INS promulgated regulations to implement Article 3, consistent with U.S. reservations, understanding and declarations.

On February 19, 1999 the Department of Justice published an interim rule prescribing regulations that implement formally, as directed by the Congress, U.S. obligations under the Convention Against Torture. The interim rule became effective on March 22, 1999. (A full text of the rule is at Annex IV of the US Report.)

Q: Is it not true that the Anti-Terrorism and Effective Death Penalty Act improperly curtails the power of the federal courts to remedy erroneous decisions of the state courts?

A: As the Supreme Court has recently demonstrated m Williams v Taylor, the Anti-Terrorism and Effective Death Penalty Act does not limit the ability of federal courts to address errors by state courts that are of constitutional dimension. Rather, it requires that such cases be brought within one year of any one of a series of triggering events and that there not be more than one habeas challenge brought in the same case.

However, as an exception to those procedural rules, the state defendant may still maintain a federal habeas corpus action if he or she can establish that there is a new rule of constitutional law which the Supreme Court has held to apply retroactively or that the factual predicate for the action could not have been discovered earlier through the exercise of due diligence and that the facts underlying the claim provide clear and convincing evidence of actual innocence or that the lower court did not give adequate consideration to the initial petition for habeas corpus.

We now turn to the remaining unanswered question posed by Mr. Rasmussen:

Q:

Is special medical training provided for doctors who work in prisons?

A: Yes. In order for a doctor to practice in a prison facility, he or she must be licensed to practice medicine in the state in which the facility is located. In addition, all Federal Bureau of Prison staff receive training upon hiring and annually thereafter regarding recognition of victims of sexual assault and abuse. Physicians receive additional training and have national policies and procedures regarding the diagnosis, evaluation and treatment of victims of abuse.

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Physicians and other health care providers are also required to have training every six months in suicide prevention. Suicidal tendencies can be one indication that an inmate is being abused.

A comprehensive orientation program has been developed for physicians and is scheduled to be implemented immediately. This program consists of a set of learning objectives which will be reviewed and discussed, one on one, between a new physician and an experienced BOP physician, over approximately five days. Pertinent topics to this question include restraints and seclusion, suicide prevention, management of hunger strikes, body cavity searches for contraband, and medical experimentation.

Procedurally, when any staff member identifies an inmate who appears to be injured, an investigation into the cause of the injury is initiated by correctional staff. All of these inmates are seen by a health care provider and a standard injury assessment form is completed. Specific training is provided to all health care staff, during their initial period of employment, regarding these examinations. Specific attention is paid to subtle abrasions, contusions, and condition of hands and fingernails. Determinations of drug or alcohol intoxication are often appropriate during these evaluations. Often the physician is asked to render an opinion as to the nature of the injury (e g , is it consistent with fisticuffs, blunt object trauma, accident?). The training for this type of evaluation is a combination of medical experience gained prior to prison employment, plus a heightened sensitivity to the types of injuries seen among inmates.

With respect to Mr. Mavrommatis, I answered above his only question, namely, regarding the delay in the filing of our report.

We turn to the questions of Mr. Yu. At the close of yesterday's session, I orally answered his question regarding the reasons why the United States does not, as part of its annually mandated country reports, file annually a country report on its own human rights practices. The remainder of his questions have been answered earlier this afternoon's presentation.

Conclusion:

Mr. Chairman, Mr. Vice-Rapporteur, and Honorable Members of the Committee, this concludes our answers to the questions raised yesterday. Let me assure you that we have done our utmost to be forthright and complete in our answers. Thank you all again for your close and thoughtful attention to our report. Mr. Yeomans and I now stand ready to clarify any of these answers or to answer any additional questions you may have.
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