Torture in the U.S. Is Still Torture

Last week, Amnesty International began a yearlong campaign aimed at addressing human rights violations in the United States. The centerpiece of its campaign is a 150-page report that covers a wide range of issues and makes dozens of policy recommendations. The report devotes considerable attention to police brutality and brutality in prisons, yet it misses an important opportunity to call for these acts to be prosecuted as torture.

In 1994, the United States ratified the United Nations Convention Against Torture. This treaty requires each country to “take effective legislative, administrative, judicial or other measures to prevent acts of torture.” Torture is defined in Article 1 of the treaty as “any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . when such pain or suffering is inflicted by . . . a public official or other person acting in an official capacity.” In supporting the treaty, the Senate cited the need to demonstrate “clearly and unequivocally U.S. opposition to torture and U.S. determination to take steps to eradicate it.” Following up on that promise, Congress passed a federal law allowing prosecution in U.S. courts of those who commit torture abroad if they are found in the U.S.

But paradoxically, Congress has failed to enact or even consider a statute to formally criminalize torture when it occurs in the United States. Although many acts constituting torture are susceptible to prosecution under state penal laws and federal civil rights statutes, torture as such is not a criminal offense if it takes place within the United States.

Last year, when New York City police officers allegedly beat Haitian immigrant Abner Louima and sodomized him with a toilet plunger, rights groups and the press condemned the attack as “torture.” But because it took place in the U.S., the officers involved were charged not with torture but with first degree assault, aggravated sexual abuse and federal civil rights violations. The same conduct, when engaged in by police in other countries, is rightly condemned by the U.S. State Department in its annual country reports on human rights practices as “torture.”

“Torture” is a powerful word and we should not shrink from using it even when it applies to government officials and law enforcement agents in the United States. To ensure this, U.S. laws, both federal and state, should be amended explicitly to outlaw torture committed in the United States. Doing so would not only telegraph appropriate concerns for vulnerable communities, but would help to strengthen deterrence of these crimes.

Eradicating torture in the United States requires efforts at both the state and federal levels. At the federal level, President Clinton should begin by issuing an executive order instructing federal law enforcement agencies of their obligation under the Convention Against Torture to prevent and punish such acts wherever they may be committed. This should include explicit instructions to government prosecutors that no government lawyer should knowingly offer as evidence any statement that was obtained through torture, whether here or abroad.

Although the Convention Against Torture was ratified at the federal level, much of the official torture that goes on in the United States today is perpetrated by state and local officials. It is urgent therefore that the Clinton administration make it a priority to begin educating state and local government officials, many of whom may be unaware that they are equally bound to uphold--and will be held accountable for--violations of the international prohibition against torture.

Once torture committed inside the United States is explicitly criminalized, the key to deterrence will, of course, be consistent prosecutions for violations. Law enforcement and other officials within the United States who commit acts of torture should be prosecuted under the same section of the U.S. code as foreign torturers who are found in this jurisdiction.

Amnesty International’s new report should serve as a catalyst to all those who assume that the practice of official torture does not happen in the United States. It does. When the U.S. government files its first (and long overdue) report to the U.N., which monitors compliance with the Convention Against Torture, it should recognize that fact. It is hoped that it also will be able to point to concrete progress toward eradicating torture in the United States. A good first step would be to make it illegal.