Foreign nations that took custody of more than 1,000 detainees held captive by the US military between 2010 and 2011 provided assurances to the United States that they would not torture any of them — even though reports later surfaced alleging that some of those detainees were tortured after being turned over.
A heavily redacted 10-page report [pdf at the end of this story] examining detainee transfers and the reliance on diplomatic assurances, declassified this week by the Department of Defense Inspector General in response to a Freedom of Information Act (FOIA) request filed by VICE News three years ago, says Defense (DOD) did not have a strict policy that "specifically addressed how detainees will be treated once transferred to another country."
"DOD should promulgate policies or directives that include an express statement that the DOD may not transfer any person to a foreign entity where it is more likely than not that the person will be tortured," said the February 28, 2012 report prepared by the deputy inspector general for intelligence.
Two years after the Inspector General (IG) made the recommendation, the DOD adopted such a policy, barring the transfer of detainees to foreign countries if US authorities determined "that it is more likely than not that the detainee would be subjected to torture."
According to the report, the US transferred 1,064 detainees who were held by the DOD in Afghanistan, Iraq, and Guantanamo between August 2010 and August 2011 (a number that, with the exception of Guantanamo, was previously undisclosed.) The breakdown was: 802 detainees from Afghanistan, 259 detainees from Iraq, and three detainees from Guantanamo who were sent to Germany and Algeria, the latter of which has a poor human rights record. The US also held three people who were captured off the coast of Somalia and were believed to be pirates.
An earlier report issued by the IG in December 2010 said the US had transferred 4,781 detainees. After it released the detainees, the US received diplomatic assurances from the foreign governments that the men would not be tortured. But the US has not determined whether the foreign governments are living up to their promises.
While George W. Bush was in office, there were widespread allegations that thousands of detainees who were physically and psychologically tortured while in the custody of the US military and the CIA were also tortured when they were turned over to foreign nations — and that the US turned a blind eye.
President Barack Obama issued an executive order a few weeks after he took office in 2009 establishing a Special Task Force on Interrogation and Transfer Policies. The task force was made up of senior administration officials and had a charter calling for lawful interrogations, the closure of CIA black site detention facilities, and a study of US detainee transfer policies to ensure they complied with domestic and international laws. The task force was to prevent "the transfer of individuals to other nations to face torture."
In August 2009, the task force issued a report that remains classified. A Justice Department press release summarizing it, however, said that while the US may rely upon diplomatic assurances that detainees will not be tortured, the task force recommended that "the State Department be involved in evaluating those assurances and that the inspectors general of the departments of State, Defense, and Homeland Security prepare annually a coordinated report on transfers conducted by each of their agencies in reliance on assurances."
'There's no way to assess this administration's record about transfers because we don't have the reports.'
"The Task Force also made several recommendations aimed at improving the United States' ability to monitor the treatment of individuals transferred to other countries," the Justice Department press release said. "These include a recommendation that agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government."
But diplomatic assurances that say detainees will not be tortured, a crucial component in the Obama administration's efforts to try and shut Guantanamo, are not legally binding.
"Diplomatic assurances are unreliable and ineffective in protecting against torture and ill-treatment, and States should not resort to them," said Juan Méndez, UN special rapporteur on torture, and Ben Emmerson, UN special rapporteur on human rights and counterterrorism, in a statement they jointly issued in December 2013. "We have often seen diplomatic assurances used by governments to circumvent the absolute prohibition of torture as established in the UN Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment."
The rapporteurs' comments were prompted by the forcible repatriation to Algeria of Guantanamo detainee Djamel Ameziane, who had protested his transfer to the country stating that he feared he would be persecuted once he was taken into custody. The US said it had obtained assurances from Algeria that Ameziane would not be mistreated.
Ameziane, who was not charged with a crime while he was held captive by the US military, unsuccessfully sued the US government after he was transferred to retrieve money confiscated from him: about $1,270 he said he earned working in Canada, and a smaller amount of Afghan and Pakistani currency. He had said in a sworn declaration that he is destitute and homeless, and needs the money to survive because the US transferred him to Algeria with nothing but the clothes on his back and a special Guantanamo care package.
More recently, the US repatriated former Guantanamo detainee Younous Chekkouri to Morocco, even though the captive had said in November 2014 it would be too dangerous for him to return home because Morocco has a history of torturing its prisoners. Though Chekkouri was never accused of a crime during the 13 years he was detained at Guantanamo, he was promptly imprisoned on suspicion of terrorism upon his repatriation in apparent violation of diplomatic assurances Moroccan government officials gave to the US that he would not be prosecuted and would not be held for more than 72 hours. Chekkouri was released about six months later.
With the exception of a Department of Homeland Security IG report issued publicly in November 2011, all of the inspectors general reports on detainee transfer assurances are still classified. The DOD IG report obtained by VICE News, one of four issued since 2010 by the watchdog and previously marked SECRET, is the first one that was released following a declassification review. We have also filed FOIA requests for the three other reports.
UPDATE 5/18/2016: On May 17, DOD IG released another report on detainee transfers and assurances in response to a FOIA request I filed in October 2013. The September 23, 2013 report, which was prepared in coordination with the State Department's inspector general, looked at detainee transfers that took place between August 24, 2011 and February 28, 2013 and assurances that the released captives would not be tortured when sent to other countries. But sections of the report pertaining to discussions about the assurances are completely redacted. This report, like the one that preceded it, also said there was no DOD policy directive at the time barring the transfer of detainees to countries if they were likely to be tortured.
"The concern we have always had about diplomatic assurances is that it's a promise not to torture from torturers," said Naureen Shah, director of Amnesty International USA's Security & Human Rights program, after reviewing the DOD IG report. "Nothing in this report shows that the US is making a good faith effort to ensure that is not happening to these individuals. The fact that the IG did not analyze whether these people were tortured after being transferred is alarming."
A spokeswoman for the DOD IG, Bridget Serchak, told VICE News the IG's review is "limited to inspections/evaluations on transfer policies and procedures, not the actual transfers." Serchak also said she could not divulge details about the IG's later reports on transfer assurances "because any response would confirm or deny classified information to the public before it was cleared for release or redacted."
Shah said that at the same time the DOD IG was working on its review of transfer assurances, Amnesty International was raising concerns about detainees formerly held in US custody being tortured by their jailers in Afghanistan and Iraq after they were transferred. Other human rights groups and media reports also documented cases of widespread torture by Iraq and Afghanistan authorities after the US transferred detainees. NATO halted the transfer of detainees to Afghanistan after the United Nations issued a report in 2013 that revealed detainees transferred to Afghan custody by the US and other foreign governments were systematically tortured.
Sections in the IG report related to detainees transferred to Afghanistan and Iraq were heavily redacted. Exempt from the redactions were assurances the US received from those governments that transferred detainees would be treated humanely.
Shah said Amnesty sent a memo to the White House last March asking the administration to take several steps before Obama leaves office to ensure the US does not return to a policy of torture.
"One thing we asked for is the declassification and disclosure of the IG reports that are classified," Shah said. "There's no way to assess this administration's record about transfers because we don't have the reports."
The White House has not responded, Shah said.
UPDATE 5/12/16: This report has been updated to include a comment from DOD IG spokeswoman Bridget Serchak.
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