PROMISES TO KEEP Diplomatic Assurances Against Torture in US Terrorism Transfers Columbia Law School Human Rights Institute DECEMBER 2010 PROMISES TO KEEP Diplomatic Assurances Against Torture in US Terrorism Transfers Columbia Law School Human Rights Institute ACKNOWLEDGEMENTS This report was written by Naureen Shah and edited by Peter Rosenblum. Contributing writers, researchers and editors from the 2009-2010 Human Rights Clinic include Leslie Hannay, Tarek Ismail, Alice Izumo, Lisa Knox and Kate Stinson. Contributing researchers from the 2008-2009 Clinic include Meera Shah, Hiba Hafiz, Aliza Hochman, Alissa King and Kate Morris. Students in the Clinic have pursued aspects of the work that lead to this report from 2003 to the present. Production was coordinated by Greta Moseson and Tarek Ismail. This report was designed by Hatty Lee. We thank all of the individuals and organizations who provided valuable input and in some cases were kind enough of to review particular sections, including Silvia Casale, Paul Champ, Steve Kostas, Bryan Lonegan, Eric Metcalfe, Brittney Nystrom, John Parry and Amrit Singh. ISBN: 978-0-615-43177-2 Human Rights Institute 435 W 116th Street New York, NY 10027 212-854-3138 www.law.columbia.edu/human-rights-institute PROMISES TO KEEP: ASSURANCES AGAINST TORTURE IN US TERRORISM TRANSFERS Summary & Key Recommendations 8 Recommendations 23 Part I. US Transfer and Assurances Practices 26 Chapter 1: US Government Resistance to Disclosure & the Prospect for Reform 26 2009 Inter-Agency Task Force Recommendations 26 Benefits and Costs of US Non-Disclosure 27 Chapter 2: Assurances in US Law & Practice 32 US Law on Transfer & Assurances 32 US State Department Role in Negotiating & Evaluating Assurances 33 Transfer Decision-Making by US Agencies 37 Assurances in Transfers from Guantánamo 38 Assurances in Transfers in Afghanistan 42 Assurances in Extradition & Deportation Cases 47 Renditions to Justice & “Extraordinary Renditions” 53 Part II. Transnational Guidance on Diplomatic Assurances 56 Chapter 1: The Development of Diplomatic Assurances Against Torture in International Law & Practice 56 Initial Acceptance of Assurances 57 Renditions: A Turning Point 59 Chapter 2: Recent Guidance from the UN & European Court of Human Rights 63 Assurances As a Legal Black Hole or a “Relevant Consideration” 63 Perspective of UN Experts and Bodies 65 Perspective of the European Court of Human Rights 68 Chapter 3: Lessons from the UK 73 UK Deportation with Assurances 73 UK Detainee Transfers in Afghanistan 84 Chapter 4: Lessons from Canada 87 Inciting Stronger Judicial Review of Deportations with Assurances 87 Failures in Monitoring: Canada’s Custodial Transfers in Afghanistan 92 Part III. Institutionalizing Reform: Applying Transnational Guidance to US Practice 95 Chapter 1: Transparency & Accountability 95 Limited US Court Oversight 95 US Rationales for Resisting Court Disclosure 97 Feasibility and Advantages of Greater Disclosure & Judicial Review 98 Feasibility of Disclosure Through Non-Judicial Mechanisms 101 Designing Better Disclosure & Accountability Mechanisms in the US 101 Chapter 2: Systematic Post-Return Monitoring 103 US Monitoring Practices 103 The Need for Monitoring Protocols and Requirements 108 Lessons from Human Rights Monitoring Bodies and International Standards 112 Appendices 122 I. Assurances in Deportation & Rendition cases 122 US–Rwanda 124 Karake Assurances 124 UK 128 Libya MoU 126 Lebanon MoU 131 Jordan MoU 133 Ethiopia MoU and Monitoring Agreement 138 Algeria Exchange of Letters 141 UK - India Chahal Assurances 146 Canada–China 147 Sing Assurances 147 Sweden-Egypt 148 Agiza Assurances 148 Italy–Tunisia 151 Assurances 151 II. Assurances in Extradition Cases 154 US–India 154 Barapind Assurances 154 III. Assurances in Guantanamo Cases 159 US–Spain 159 Assurances 159 IV. Assurances in Afghan Detainee Transfers 164 UK–Afghan MoU 164 Canada–Afghan MoU 2005 168 MoU 2007 170 US–Afghan 2006 Exchange of Letters 172 suMMarY & KEY RECOMMENdatiONS SUMMARY & KEY RECOMMENdaTIONS “DIPLOMATIC ASSURANCES” ARE PROMISES NOT TO TORTURE. They are sought when transferring a detainee from the custody of one government to another. Not surprisingly, they are sought from governments that typically torture. What was relatively rare and unexamined, a decade ago, has become common currency and a term of art since 9/11. The “global war on terror” has created pockets of detainees held by foreign authorities around the world, with the prospect of more in the future. The pressure for transferring them will only increase as the US and ally governments come to believe that long-term detention is untenable for legal or policy reasons. Leading human rights advocates have condemned the practice of relying on assurances. According to them, assurances are inherently unreliable in countries that have already demonstrated their willingness to torture in violation of local and international law. Whatever the doubts about their ultimate effec- tiveness, however, there are clearly better and worse ways of employing assurances: they can serve as the cynical, legalistic veneer to a conscious abdication of responsibility, or a sincere effort to diminish the likelihood of an individual’s mistreatment. From the past decade, there is evidence of the cynical, the sincere and much that falls in between, where mistakes or incompetence make the motives irrelevant. In their first known use after 9/11, Sweden ob- tained vague assurances from Egypt that it would respect the rights of two asylum seekers returned to Egypt by a team of masked US commandos. Swedish diplomats waited five weeks before checking on the detainees and, then, did so in the presence of prison officials. For the US the first government acknowl- edgment of assurances after 9/11 was made to deflect responsibility for the alleged torture of Maher Arar, a Canadian citizen whom the US transferred to Syria. Years later, it emerged that the State Depart- ment had dismissed any concerns about the transfer without bothering to review the conditions. These examples could be treated as unfortunate gaffes committed by pressured officials operating in a difficult environment without clear instructions. Both Canada and Sweden were forced to respond robustly. A public The US maintains inquiry in Canada led the government to apologize to Arar and pay CAD $10.5 million in damages. The early disclosures have led US allies to expose the practice to broad secrecy about its public debate and judicial scrutiny. current practice while Not so the United States, which has never publicly ac- knowledged fault or a need to improve. The US contin- insisting that others trust ues to maintain broad secrecy about its current practice while insisting that others trust it to respect the law and do the right thing. The US government hints publicly at it to respect the law and improvements in internal processes while claiming that frank disclosure and judicial review—now extensive in do the right thing Europe and Canada—are unnecessary and counterpro- ductive. Disclosing the process or text of assurances would harm diplomatic relations, according to US officials, and judicial review would undermine the ability of the US government to ‘speak with one voice.’ But, as we already knew from oblique references by State Department officials and Freedom of Infor- mation Act (FOIA) disclosures, there have been other failures of assurances. Now, from the trickle of cables released on WikiLeaks more details are emerging, documenting both the scrupulous efforts 8 • Human Rights Institute | Columbia Law School suMMarY & KEY RECOMMENdatiONS of individual diplomats and the specific failures of particular assurances. While more details of specific SUMMARY & KEY RECOMMENdaTIONS cases will certainly emerge, thus far the leaks simply reinforce the need for clear policies and broader transparency to ensure appropriate vetting and accountability. This report surveys the law and practice of assurances in the US and, comparatively, in Canada and Eu- rope. It is the culmination of a long-term engagement by Columbia’s Human Rights Clinic and its faculty to research and support advocacy on diplomatic assurances. That process has involved advocacy with Swedish NGOs, support for research by Human Rights Watch, FOIA requests with the ACLU and col- laborative efforts with UN mechanisms. Over the past decade, human rights groups, in particular, have produced impressive documentation. But no single source presents the evolving evidence and jurisprudence of diplomatic assurances. This report seeks to fill that gap. We do not take a position on whether assurances can work. Rather, we seek to identify elements that are necessary in order to make assurances plausible. We focus on what is known about preventing torture and how that can be incorporated into the process. We describe steps the US should immediately take to institutionalize better practices: submit to judi- cial review, engage with public scrutiny, and commit to systematic monitoring. But there are limits to reform. In too many cases, and certainly where local authorities routinely practice torture and conceal it, assurances are unlikely to significantly diminish the risk of torture and abuse. The US should vigilantly guard against using assurances to excuse, instead of protect against, transfers to torture. I. US PRACTICE ON DIPLOMATIC ASSURANCES Assurances play a significant role in US counterterrorism practices. They are a tool in implementing legal and moral commitments not to transfer