The United States played a leading role in developing and signing onto international human rights instruments prohibiting torture including the Universal Declaration of Human Rights (1948), the Geneva Conventions (1949), the International Covenant on Civil and Political Rights (1966), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984). 

In the 1999 Report of the United States to the United Nations Committee Against Torture, the U.S. government affirmed that:  

• Torture is categorically denounced as a matter of policy and as a tool of state authority.
• Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States.
• No official of the government - federal, state or local, civilian or military - is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form.
• No exceptional circumstances (such as a "state of public emergency") may be invoked as a justification of torture. 
• Torture has always been prohibited by the Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual punishments."  All individuals are protected by this amendment, regardless of nationality or citizenship.

POST 9/11/2001 - 2005

The events of September 11, 2001, and the subsequent "war on terror" gave rise to public debate about how to uphold civil liberties and protect national security.  On the 2004 United Nations International Day in Support of Victims of Torture, President George W. Bush emphasized that while fighting the war on terror, the U.S. "will not compromise the rule of law or the values and principles that make us strong."  He also declared that the "United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years."    

In 2005, the United States submitted its second periodic report to the UN Committee Against Torture.  In this report, the U.S. reaffirmed that "[i]n fighting terrorism, the U.S. remains committed to respecting the rule of law, including the U.S. Constitution, federal statutes, and international treaty obligations, including the Torture Convention."  In addition, the report stressed that

[t]he United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.

On the 2005 United Nations International Day in Support of Victims of Torture, President Bush observed that "[f]reedom from torture is an inalienable human right."  Thus, the U.S. is publicly and legally committed to unequivocally prohibiting torture.   

However, U.S. government practices and recent internal policies have failed to live up to these commitments.  Internal legal memoranda demonstrate a fierce debate within the U.S. government over what interrogation and detainment techniques are permissible and whether to apply the Geneva Conventions.  Despite strong objections from then-Secretary of State Colin Powell that such practices would undermine a century of U.S. policy and practice, the government decided not to consider itself bound to the Geneva Conventions and defined torture so narrowly as to authorize interrogation practices that violate international and U.S. federal law.  The documents that reached these conclusions are now known infamously as the "torture memos."  

Over the course of the "war on terror," the U.S. has detained 83,000 foreigners.  As of November, 2005, the U.S. was detaining over 14,500 people in Iraq, Guantánamo, and Afghanistan.  As many as 100 “ghost detainees” are hidden and kept without official record by the U.S.  Another 100-150 persons have been rendered by the U.S. to states reproved for practicing torture, including Syria and Egypt. There are 23 other secret detention centers in Afghanistan, Guantánamo, and elsewhere.

In November 2005, Senate Armed Services Chairman John Warner, R-Va., said that more than 400 criminal investigations have been conducted and 95 military personnel have been charged with misconduct.  In April 2006, a report indicated that allegations of detainee abuse implicate more than 600 U.S. military and civilian personnel and involve more than 460 detainees.  At least 48 U.S military personnel are accused of abuse at Abu Ghraib alone.  Since August 2002, over 100 deaths have been reported, 34 of which are confirmed or suspected homicides, according to the U.S. military's own classifications.       

Despite U.S. government actions, three quarters of Americans believe that torture and abuse is morally wrong and an overwhelming 88% favor laws prohibiting it, according to national polls. Seventy-one percent of Americans believe that those who engaged in or ordered others to engage in cruel and humiliating treatment should be tried and punished. Even so, of the 48 military personnel who have been accused of abuse at Abu Ghraib alone, not one high level military or civilian leader has been held criminally responsible to date.

2006 - PRESENT

In April 2006, despite U.S. public abhorrence of torture and legal obligations to prosecute torturers, enforcement efforts have been lethargic. As a Human Rights Watch report points out:

• Only a fraction of the more than 600 U.S. personnel implicated in these cases – 40 people – have been sentenced to prison time.  
• Of the hundreds of allegations of abuse collected, only about half appear to have been adequately investigated.  
• In cases where courts-martial convened, the majority of prison sentences have been for less than a year, even in cases involving serious abuse.
• Only 10 U.S. personnel have been sentenced to a year or more in prison.  
• No U.S. military officer has been held accountable for criminal acts committed by subordinates under the doctrine of command responsibility.
• Only three officers have been convicted by court-martial for detainee abuse.  
• Although approximately 20 civilians, including CIA agents, have been referred to the Department of Justice for criminal prosecution for detainee abuse, the Department of Justice has shown minimal initiative in moving forward in abuse cases.

In early May 2006, the United States appeared before the U.N. Committee Against Torture for consideration of its second periodic report on compliance with the Convention Against Torture.  At these recent hearings, Human Rights First claims the United States Government asserted a number of positions which are inaccurate both factually and legally.  Upon reviewing the documents presented by the United States, the United Nations urged the United States to shut down operations at Guantánamo Bay and end secret detentions because they violate the world torture ban.  According to the U.N. report, the U.S. should close any secret “war on terror” detention facilities abroad and the Guantánamo Bay camp in Cuba.  As the BBC reports, “the US has maintained that it is engaged in a long term war on terror and that some aspects of the convention on torture may not apply.  But, the UN committee rejected this…saying the total ban on torture applies in time of peace, war or armed conflict and anyone violating the convention should be prosecuted.” 

However, in July 2006, the U.S. rejected the U.N. panel’s probing into Guantánamo Bay.  The U.S. stated that the treatment of its detainees in Iraq, Guantánamo, and Afghanistan is outside the borders of the United States and therefore falls outside of the Geneva Conventions.

In October 2006, Congress signed into law the Military Commission Act of 2006.  President Bush hailed this Act as “one of the most important pieces of legislation in the war on terror… This bill spells out specific, recognizable offenses that would be considered crimes in the handling of detainees so that our men and women who question captured terrorists can perform their duties to the fullest extent of the law. And this bill complies with both the spirit and the letter of our international obligations. As I've said before, the United States does not torture. It's against our laws and it's against our values.”  However, not everyone views the bill as being fair and complying with international obligations; as a counter report by Humans Rights First points out:

This Act - among other things - sought to re-define U.S. obligations under Common Article 3 of the Geneva Conventions…[which] places an absolute prohibition on inhumane treatment of detainees during an armed conflict.  Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a "flexible" standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. The Administration's proposal adds ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses.