Distr.
GENERAL

CAT/C/USA/CO/2
18 May 2006

Original: ENGLISH

ADVANCE UNEDITED VERSION
COMMITTEE AGAINST TORTURE
36th session
1 – 19 May 2006
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION

Conclusions and recommendations of the Committee against Torture
UNITED STATES OF AMERICA
1.
The Committee against Torture (“the Committee”) considered the second report of the
United States of America (CAT/C/48/Add.3/Rev.1) at its 702nd and 705th meetings
(CAT/C/SR.702 and 705), held on 5 and 8 May 2006, and adopted, at its 720th and 721st meetings,
on 17 and 18 May 2006 (CAT/C/SR.720 and 721) the following conclusions and recommendations.
A. Introduction
2.
The second periodic report of the United States of America was due on 19 November 2001,
as requested by the Committee at its twenty-fourth session in May 2000 (A/55/44, para. 180 (f)) and
was received on 6 May 2005. The Committee notes that the report includes a point-by-point reply to
the Committee's previous recommendations.
3.
The Committee commends the State party for its exhaustive written responses to the
Committee’s list of issues, as well as the detailed responses provided both in writing and orally to

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the questions posed by the members during the examination of the report. The Committee expresses
its appreciation for the large and high-level delegation, comprising representatives from relevant
Departments of the State party, which facilitated a constructive oral exchange during the
consideration of the report.
4.
The Committee notes that the State party has a federal structure, but recalls that the United
States of America is a single State under international law and has the obligation to implement the
Convention against Torture (“the Convention”) in full at the domestic level.
5.
Recalling its statement adopted on 22 November 2001 condemning utterly the terrorist
attacks of 11 September 2001, the terrible threat to international peace and security posed by acts of
international terrorism and the need to combat by all means, in accordance with the Charter of the
United Nations, the threats caused by terrorist acts, the Committee recognizes that these attacks
caused profound suffering to many residents of the State party. The Committee acknowledges that
the State party is engaged in protecting its security and the security and freedom of its citizens in a
complex legal and political context.
B. Positive aspects
6.
The Committee welcomes the State party’s statement that all United States’ officials, from
all Government agencies, including its contractors, are prohibited from engaging in torture at all
times and in all places, and that all United States’ officials from all Government agencies, including
its contractors, wherever they may be, are prohibited from engaging in cruel, inhuman or degrading
treatment or punishment, in accordance with the obligations in the Convention.
7.
The Committee notes with satisfaction the State party’s statement that the United States does
not transfer persons to countries where it believes it is “more likely than not” that they will be
tortured, and that this also applies, as a matter of policy, to the transfer of any individual, in the State
party’s custody, or control, regardless of where they are detained.
8.
The Committee welcomes the State party’s clarification that the statement of the U.S.
President on signing the Detainee Treatment Act on 30 December 2005 is not to be interpreted as a
derogation by the President from the absolute prohibition of torture.
9.

The Committee also notes with satisfaction the enactment of:
a)

The Prison Rape Elimination Act of 2003, which addresses sexual assault of persons
in the custody of correctional agencies, with the purpose, inter alia, of establishing a
“zero-tolerance standard” for rape in detention facilities in the State party; and

b)

That part of the Detainee Treatment Act of 2005 which prohibits cruel, inhuman, or
degrading treatment and punishment of any person, regardless of nationality or
physical location, in the custody or under the physical control of the State party.

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10.
The Committee welcomes the adoption of National Detention Standards in 2000, which set
minimum standards for detention facilities holding Department of Homeland Security detainees,
including asylum-seekers.
11.
The Committee also notes with satisfaction the sustained and substantial contributions of the
State party to the United Nations Voluntary Fund for the Victims of Torture.
12.
The Committee notes the State party’s intention to adopt a new Army Field Manual for
intelligence interrogation, applicable to all its personnel, which, according to the State party, will
ensure that interrogation techniques fully comply with the Convention.

C. Principal subjects of concern and recommendations

13.
Notwithstanding the statement by the State party that “every act of torture within the
meaning of the Convention is illegal under existing federal and/or state law”, the Committee
reiterates the concern expressed in its previous Conclusions and Recommendations with regard to
the absence of a federal crime of torture, consistent with article 1 of the Convention, given that
sections 2340 and 2340 A of the United States Code limit federal criminal jurisdiction over acts of
torture to extraterritorial cases. The Committee also regrets that, despite the occurrence of cases of
extraterritorial torture of detainees, no prosecutions have been initiated under the extraterritorial
criminal torture statute. (articles 1, 2, 4 and 5)
The Committee reiterates its previous recommendation that the State party should
enact a federal crime of torture consistent with article 1 of the Convention, which
should include appropriate penalties, in order to fulfill its obligations under the
Convention to prevent and eliminate acts of torture causing severe pain or suffering,
whether physical or mental, in all its forms.
The State party should ensure that acts of psychological torture, prohibited by the
Convention, are not limited to “prolonged mental harm” as set out in the State party’s
understandings lodged at the time of ratification of the Convention, but constitute a
wider category of acts, which cause severe mental suffering, irrespective of their
prolongation or its duration.
The State party should investigate, prosecute and punish perpetrators under the
federal extraterritorial criminal torture statute.
14.
The Committee regrets the State party’s opinion that the Convention is not applicable in
times and in the context of armed conflict, on the basis of the argument that the “law of armed
conflict” is the exclusive lex specialis applicable, and that the Convention’s application “would
result in an overlap of the different treaties which would undermine the objective of eradicating
torture”. (articles 1 and 16)

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The State party should recognize and ensure that the Convention applies at all times,
whether in peace, war or armed conflict, in any territory under its jurisdiction and that
the application of the Convention’s provisions are without prejudice to the provisions
of any other international instrument, pursuant to paragraph 2 of its articles 1 and 16.
15.
The Committee notes that a number of the Convention’s provisions are expressed as
applying to “territory under [the State party’s] jurisdiction” (articles 2, 5, 13, 16). The Committee
reiterates its previously expressed view that this includes all areas under the de facto effective
control of the State party, by whichever military or civil authorities such control is exercized. The
Committee considers that the State party’s view that those provisions are geographically limited to
its own de jure territory to be regrettable.
The State party should recognize and ensure that the provisions of the Convention
expressed as applicable to “territory under the State party’s jurisdiction” apply to, and
are fully enjoyed, by all persons under the effective control of its authorities, of
whichever type, wherever located in the world.
16.
The Committee notes with concern that the State party does not always register persons
detained in territories under its jurisdiction outside the United States, depriving them of an effective
safeguard against acts of torture (article 2)
The State party should register all persons it detains in any territory under its
jurisdiction, as one measure to prevent acts of torture. Registration should contain the
identity of the detainee, the date, time and place of the detention, the identity of the
authority that detained the person, the ground for the detention, the date and time of
admission to the detention facility and the state of health of the detainee upon
admission and any changes thereto, the time and place of interrogations, with the
names of all interrogators present, as well as the date and time of release or transfer to
another detention facility.
17.
The Committee is concerned by allegations that the State party has established secret
detention facilities, which are not accessible to the International Committee of the Red Cross.
Detainees are deprived of fundamental legal safeguards, including an oversight mechanism in regard
to their treatment and review procedures with respect to their detention. The Committee is also
concerned by allegations that those detained in such facilities could be held for prolonged periods
and face torture or cruel, inhuman or degrading treatment. The Committee considers the “no
comment” policy of the State party regarding the existence of such secret detention facilities, as well
as on its intelligence activities, to be regrettable. (articles 2 and 16)
The State party should ensure that no one is detained in any secret detention facility
under its de facto effective control. Detaining persons in such conditions constitutes, per
se, a violation of the Convention. The State party should investigate and disclose the
existence of any such facilities and the authority under which they have been

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established and the manner in which detainees are treated. The State party should
publicly condemn any policy of secret detention.
The Committee recalls that intelligence activities, notwithstanding their author, nature
or location, are acts of the State party, fully engaging its international responsibility.
18.
The Committee is concerned by reports of the involvement of the State party in enforced
disappearances. The Committee considers the State party’s view that such acts do not constitute a
form of torture to be regrettable. (articles 2 and 16)
The State party should adopt all necessary measures to prohibit and prevent enforced
disappearance in any territory under its jurisdiction, and prosecute and punish
perpetrators, as this practice constitutes, per se, a violation of the Convention.
19.
Notwithstanding the State party’s statement that “[u]nder U.S. law, there is no derogation
from the express statutory prohibition of torture” and that “[n]o circumstances whatsoever (…) may
be invoked as a justification or defense to committing torture”, the Committee remains concerned at
the absence of clear legal provisions ensuring that the Convention’s prohibition against torture is not
derogated from under any circumstances, in particular since 11 September 2001. (articles 2, 11 and
12)
The State party should adopt clear legal provisions to implement the principle of
absolute prohibition of torture in its domestic law without any possible derogation.
Derogation from this principle is incompatible with paragraph 2, of article 2, of the
Convention and cannot limit criminal responsibility. The State party should also ensure
that perpetrators of acts of torture are prosecuted and punished appropriately.
The State party should also ensure that any interrogation rules, instructions or
methods do not derogate from the principle of absolute prohibition of torture and that
no doctrine under domestic law impedes the full criminal responsibility of perpetrators
of acts of torture.
The State party should promptly, thoroughly, and impartially investigate any
responsibility of senior military and civilian officials authorizing, acquiescing or
consenting, in any way, to acts of torture committed by their subordinates.
20.
The Committee is concerned that the State party considers that the non-refoulement
obligation, under article 3 of the Convention, does not extend to a person detained outside its
territory. The Committee is also concerned by the State party’s rendition of suspects, without any
judicial procedure, to States where they face a real risk of torture. (article 3)
The State party should apply the non-refoulement guarantee to all detainees in its
custody, cease the rendition of suspects, in particular by its intelligence agencies, to
States where they face a real risk of torture, in order to comply with its obligations

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under article 3 of the Convention. The State party should always ensure that suspects
have the possibility to challenge decisions of refoulement.
21.
The Committee is concerned by the State party’s use of “diplomatic assurances”, or other
kinds of guarantees, assuring that a person will not be tortured if expelled, returned, transferred or
extradited to another State. The Committee is also concerned by the secrecy of such procedures
including the absence of judicial scrutiny and the lack of monitoring mechanisms put in place to
assess if the assurances have been honoured. (article 3)
When determining the applicability of its non-refoulement obligations under article 3 of
the Convention, the State party should only rely on “diplomatic assurances” in regard
to States which do not systematically violate the Convention’s provisions, and after a
thorough examination of the merits of each individual case. The State party should
establish and implement clear procedures for obtaining such assurances, with adequate
judicial mechanisms for review, and effective post-return monitoring arrangements.
The State party should also provide detailed information to the Committee on all cases
since 11 September 2001 where assurances have been provided.
22.
The Committee, noting that detaining persons indefinitely without charge, constitutes per se
a violation of the Convention, is concerned that detainees are held for protracted periods at
Guantánamo Bay, without sufficient legal safeguards and without judicial assessment of the
justification for their detention. (articles 2, 3 and 16)
The State party should cease to detain any person at Guantánamo Bay and close this
detention facility, permit access by the detainees to judicial process or release them as
soon as possible, ensuring that they are not returned to any State where they could face
a real risk of being tortured, in order to comply with its obligations under the
Convention.
23.
The Committee is concerned that information, education and training provided to the State
party’s law enforcement or military personnel are not adequate and do not focus on all provisions of
the Convention, in particular on the non-derogable nature of the prohibition of torture and the
prevention of cruel, inhuman and degrading treatment or punishment. (articles 10 and 11)
The State party should ensure that education and training of all law enforcement or
military personnel, are conducted on a regular basis, in particular for personnel
involved in the interrogation of suspects. This should include training on interrogation
rules, instructions and methods, and specific training on how to identify signs of torture
and cruel, inhuman or degrading treatment. Such personnel should also be instructed
to report such incidents.
The State party should also regularly evaluate the training and education provided to
its law enforcement and military personnel as well as ensure regular and independent
monitoring of their conduct.

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24.
The Committee is concerned that in 2002 the State party authorized the use of certain
interrogation techniques, which have resulted in the death of some detainees during interrogation.
The Committee also regrets that “confusing interrogation rules” and techniques defined in vague and
general terms, such as “stress positions”, have led to serious abuses of detainees. (articles 11, 1, 2
and 16)
The State party should rescind any interrogation technique, including methods
involving sexual humiliation, “water boarding”, “short shackling” and using dogs to
induce fear, that constitute torture or cruel, inhuman or degrading treatment or
punishment, in all places of detention under its de facto effective control, in order to
comply with its obligations under the Convention.
25.
The Committee is concerned with allegations of impunity of some of the State party’s law
enforcement personnel in respect of acts of torture or cruel, inhuman or degrading treatment or
punishment. The Committee notes the limited investigation and lack of prosecution in respect of the
allegations of torture perpetrated in areas 2 and 3 of the Chicago Police Department. (article 12)
The State party should promptly, thoroughly and impartially investigate all allegations
of acts of torture or cruel, inhuman or degrading treatment or punishment by law
enforcement personnel and bring perpetrators to justice, in order to fulfill its
obligations under article 12 of the Convention. The State party should also provide the
Committee with information on the ongoing investigations and prosecution relating to
the above mentioned case.
26.
The Committee is concerned by reliable reports of acts of torture or cruel, inhuman and
degrading treatment or punishment committed by certain members of the State party’s military or
civilian personnel in Afghanistan and Iraq. It is also concerned that the investigation and prosecution
of many of these cases, including some resulting in the death of detainees, have led to lenient
sentences, including of an administrative nature or less than one year’s imprisonment. (article 12)
The State party should take immediate measures to eradicate all forms of torture and
ill-treatment of detainees by its military or civilian personnel, in any territory under its
jurisdiction, and should promptly and thoroughly investigate such acts and prosecute
all those responsible for such acts, and ensure they are appropriately punished, in
accordance with the seriousness of the crime.
27.
The Committee is concerned that the Detainee Treatment Act of 2005 aims to withdraw the
jurisdiction of the State party’s federal courts with respect to habeas corpus petitions, or other
claims by or on behalf of Guantánamo Bay detainees, except under limited circumstances. The
Committee is also concerned that detainees in Afghanistan and Iraq, under the control of the
Department of Defence, have their status determined and reviewed by an administrative process of
that Department. (article 13)

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The State party should ensure that independent, prompt and thorough procedures to
review the circumstances of detention and the status of detainees are available to all
detainees as required by article 13 of the Convention.
28.
The Committee is concerned by the difficulties certain victims of abuses have faced in
obtaining redress and adequate compensation, and that only a limited number of detainees have filed
claims for compensation for alleged abuse and maltreatment, in particular under the Foreign Claims
Act. (article 14)
The State party should ensure, in accordance with the Convention, that mechanisms to
obtain full redress, compensation and rehabilitation are accessible to all victims of acts
of torture or abuse, including sexual violence, perpetrated by its officials.
29.
The Committee is concerned by section 1997 e (e) of the 1995 Prison Litigation Reform Act
which provides “that no federal civil action may be brought by a prisoner for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” (article 14)
The State party should not limit the right of victims to bring civil actions and amend
the Prison Litigation Reform Act accordingly.
30.
The Committee, while taking note of the State party’s instruction number 10 of 24 March
2006 which provides that military commissions shall not admit statements established to be made as
a result of torture in evidence, is concerned about the implementation of the instruction in the
context of such commissions and the limitations on detainees’ effective right to complain. The
Committee is also concerned about the Combatant Status Review Tribunals and the Administrative
Review Boards. (articles 13 and 15)
The State party should ensure that its obligations under articles 13 and 15 are fulfilled
in all circumstances, including in the context of military commissions and should
consider establishing an independent mechanism to guarantee the rights of all detainees
in its custody.
31.
The Committee is concerned by the fact that substantiated information indicates that
executions in the State party can be accompanied by severe pain and suffering. (articles 16, 1 and 2)
The State party should carefully review its execution methods, in particular lethal
injection in order to prevent severe pain and suffering.
32.
The Committee is concerned by reliable reports of sexual assault of sentenced detainees, as
well as persons in pre-trial or immigration detention, in places of detention in the State party. The
Committee is concerned that there are numerous reports of sexual violence perpetrated by detainees
on each other, and that persons of differing sexual orientation are particularly vulnerable. The
Committee is also concerned by the lack of prompt and independent investigation of such acts and

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that appropriate measures to combat these abuses have not been implemented by the State party.
(articles 16, 12, 13 and 14)
The State party should design and implement appropriate measures to prevent all
sexual violence, in all its detention centres. The State party should ensure that all
allegations of violence in detention centres are investigated promptly and
independently, perpetrators are prosecuted and appropriately sentenced and victims
can seek redress, including appropriate compensation.
33.
The Committee is concerned by the treatment of detained women in the State party,
including gender-based humiliation and incidents of shackling of women detainees during childbirth. (article 16)
The State party should adopt all appropriate measures to ensure that women in
detention are treated in conformity with international standards.
34.
The Committee reiterates the concern expressed in its previous recommendations about the
conditions of the detention of children, in particular the fact that they may not be completely
segregated from adults during pre-trail detention and after sentencing. The Committee is also
concerned by the large number of children sentenced to life imprisonment in the State party. (article
16)
The State party should ensure that detained children are kept in facilities separate
from those for adults in conformity with international standards. The State party
should address sentences of life imprisonment of children as these could constitute
cruel, inhuman or degrading treatment or punishment.
35.
The Committee remains concerned about the extensive use by the State party’s law
enforcement personnel of electro-shock devices which have caused in several deaths. The
Committee is concerned that this practice raises serious issues of compatibility with article 16 of the
Convention. (article 16)
The State party should carefully review the use of electro-shock devices, strictly
regulate their use, restricting it to substitution for lethal weapons and eliminate the use
of these devices to restrain persons in custody, as this leads to breaches of article 16 of
the Convention.
36.
The Committee remains concerned about the extremely harsh regime imposed on detainees
in “supermaximum prisons.” The Committee is concerned about the prolonged isolation periods
detainees are subjected to, the effect such treatment has on their mental health, and that its purpose
may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or
punishment. (article 16)
The State party should review the regime imposed on detainees in “supermaximum
prisons,” in particular the practice of prolonged isolation.

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37.
The Committee is concerned about reports of brutality and use of excessive force by the
State party’s law enforcement personnel, and the numerous allegations of their ill-treatment of
vulnerable groups, in particular racial minorities, migrants and persons of different sexual
orientation which have not been adequately investigated. (article 16 and 12)
The State party should ensure that reports of brutality and ill-treatment of members of
vulnerable groups by its law enforcement personnel are independently, promptly and
thoroughly investigated and that perpetrators are prosecuted and appropriately
punished.
38.
The Committee strongly encourages the State party to invite the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, in full conformity with the
terms of reference for fact-finding missions by Special Procedures of the United Nations, to visit
Guantánamo Bay and any other detention facility under its effective de facto control.
39.
The Committee invites the State party to reconsider its express intention not to become party
to the Rome Statute of the International Criminal Court.
40.
The Committee reiterates its recommendation that the State party should consider
withdrawing its reservations, declarations and understandings lodged at the time of ratification of
the Convention.
41.
The Committee encourages the State party to consider making the declaration under article
22, thereby recognizing the competence of the Committee to receive and consider individual
communications, as well as ratifying the Optional Protocol to the Convention.
42.
The Committee requests the State party to provide detailed statistical data, disaggregated by
sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by
law enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to
such complaints. It requests the State party to provide similar statistical data and information on the
enforcement of the Civil Rights of Institutionalized Persons Act by the Department of Justice, in
particular in respect to the prevention, investigation and prosecution of acts of torture, or cruel,
inhuman or degrading treatment or punishment in detention facilities and the measures taken to
implement the Prison Rape Elimination Act and their impact. The Committee requests the State
party to provide information on any compensation and rehabilitation provided to victims. The
Committee encourages the State party to create a federal database to facilitate the collection of such
statistics and information which assist in the assessment of the implementation of the provisions of
the Convention and the practical enjoyment of the rights it provides. The Committee also requests
the State party to provide information on investigations into the alleged ill-treatment perpetrated by
law enforcement personnel in the aftermath of Hurricane Katrina.
43.
The Committee requests the State party to provide, within one year, information on its
response to its recommendations in paragraphs 16, 20, 21, 22, 24, 33, 34 and 42 above.

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44.
The Committee requests the State party to disseminate its report, with its addenda and the
written answers to the Committee’s list of issues and oral questions and the conclusions and
recommendations of the Committee widely, in all appropriate languages through official websites,
the media and non-governmental organizations.
45.
The State party is invited to submit its next periodic report, which will be considered as its
fifth periodic report, by 19 November 2011, the due date of the fifth periodic report.
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