Documents suggest diplomatic assurances are flawed

The American Civil Liberties Union and Columbia Law School's Human Rights Clinic released documents today revealing for the first time details of the U.S. government's process for transferring individuals to countries where they face a significant risk of being tortured. The documents, which were uncovered as the result of a Freedom of Information Act (FOIA) request by the two organizations, shed new light on the practice of "diplomatic assurances" or secret promises obtained from foreign governments that they will not torture the returned individuals. "The United States' practice of relying on deeply flawed diplomatic assurances makes a mockery of our obligations under the Convention Against Torture," said Judy Rabinovitz, Deputy Director of the ACLU Immigrants' Rights Project. "Now that President-elect Obama has pledged to end torture, it is a perfect time to put a stop to policies that permit the transfer of individuals facing torture in foreign countries. Our government should stop trusting such inherently unreliable assurances and immediately disclose all remaining records relating to this practice." The documents released today include copies of actual diplomatic assurances–the first ever to be made public. The U.S. government has repeatedly insisted that the assurances must remain secret. Also included among the documents are memos between high-level State Department officials and Indian diplomats pertaining to the extradition of Kulbir Singh Barapind, a Sikh separatist who was alleged to have committed crimes prior to his arrival in the U.S. in 1993. These memos shed light on the inherent unreliability of such unenforceable promises. For example, one memo written by Deputy Secretary of State John Bellinger states, "There is no doubt that torture generally remains a problem for Indian law enforcement." Yet the U.S. government extradited Barapind in 2006 based on diplomatic assurances from the Indian government that he would not be tortured upon his return. According to another memo, the U.S. government conceded that it is "keenly aware of the culture of torture and extrajudicial punishment in Indian jails" and admitted that it was "unable authoritatively to confirm" whether another extradited couple was tortured. In fact, the couple signed affidavits claiming they were indeed tortured. The State Department also turned over documents relating to the extradition of Mexican national Ramiro Cornejo-Barreto and Romanian national Petru Mironescu. "These documents provide the first meaningful glimpse into the diplomatic assurances process–and what they reveal is not a pretty picture," said Peter Rosenblum, Director of Columbia's Human Rights Clinic. "The American public deserves to know the full truth about this troubling practice. Unfortunately, since so much information is still being withheld, a complete accounting of the diplomatic assurances process remains elusive." The Convention Against Torture, ratified by the U.S. in 1994, prohibits the U.S. from transferring a person "to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." That prohibition has also been implemented in domestic law. But the U.S. has sought to avoid its treaty obligations by transferring individuals to countries–including those known to employ torture–that provide assurances that they will not torture such individuals. The United States has obtained such assurances from other countries known to employ torture, including Syria and Egypt. While the full extent of reliance on assurances is unknown, the U.S. has acknowledged that it relies on these promises for all transfers from Guantánamo. Earlier this year, in the first decision of its kind, a federal court sided with the ACLU and ordered the government to stop the deportation of Sameh Khouzam based on secret and unreliable promises from the Egyptian government that he would not be tortured upon extradition. The judge in the case noted that deporting Khouzam based on diplomatic assurances without court review would render the procedures established for seeking protection under the Convention Against Torture "a farce." He added, "Not even the President of the United States has the authority to sacrifice…the right to be free from torture." The FOIA request that produced today's documents seeks records related to the transfer of individuals in a number of different contexts, including immigration removal, extradition, transfer from Guantánamo Bay, and all other transfers from United States custody. The request was filed with the CIA and the Departments of State, Defense, Justice and Homeland Security.