The One Country Where Torture is So Likely That Even the United States Will Not Transfer a Detainee There

Marty Lederman

It's none other than the host of the Summer Olympics, China.

The Convention Against Torture prohibits nations from expelling, returning or extraditing a person to another State "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. has interpreted this to apply only where it is more likely than not that the person will be tortured -- i.e., the odds of torture must be over 50 percent.

Now, the Bush Administration claims it does not have to abide by this treaty obligation unless the person in question is in the United States proper. (More on this claim here.) Nevertheless, the Administration insists that as a matter of "policy" it will not render detainees to nations where it is more likely than not they will be tortured. This is how the State Department described that U.S. policy, in a Report to the United Nations on the Convention Against Torture:

The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured. The United States does not transfer persons to countries where the United States believes it is "more likely than not" that they will be tortured. This policy applies to all components of the United States government.

Despite this policy, the U.S. virtually never finds that someone is more likely than not to be tortured, even in nations with substantial, confirmed records of torture and abuse, such as Syria, Egypt, Iraq, Haiti, etc. We have sent persons, including detainees, to all of these places upon findings (often based on so-called "assurances") that the risk of torture was less than 50 percent.

Which brings us once again to the case of the Uighurs and Huzaifa Parhat, which I discussed here. The U.S. Court of Appeals recently held that the government has failed to produce sufficient evidence to show that Parhat, who has been imprisoned at GTMO for more than six years, is a detainable enemy combatant, even on the government's own extremely broad theory of who may be detained.

OK, but what, then, should the government do with Parhat? He is asking the habeas court to order his release into the United States. The government is strongly resisting that remedy, because, as DOJ argues, "[i]t is undisputed that petitioner traveled to Afghanistan to receive military training from a camp affiliated with enemies of this country." In fact, that is not undisputed at all: Parhat claims that the camp had little if anything to do with any "enemies of [the United States]." And more to the point, the whole thrust of the court of appeals' opinion was that the government had failed to demonstrate that Parhat's experience at that camp was evidence that he is someone likely to engage in belligerent acts against the U.S.: Parhat has never participated in, or planned, or even supported, any hostile action against the United States or its allies.

The evident reason that the U.S. does not wish to release Parhat into the United States, then, is not that he is a threat to engage in any violence here, but instead that to do so would antagonize China, which is attempting to quash the Uighur resistance. As DOJ puts it in its brief (citing an earlier Uighur case): "China is keenly interested in their return. An order requiring their release into the United States * * * [thus] would have national security and diplomatic implications . . . ."

Which makes all the more interesting the reason the U.S. refuses to simply transfer Parhat to China, his home country: "[P]etitioner vigorously opposes being sent to his native country, and the United States, consistent with its policy against returning an individual when it is more likely than not he will be tortured, will not return him involuntarily to that country."

As recent experience has shown, it takes a great deal of evidence to convince the United States that someone is likely to be tortured by a repressive regime. Finally, the U.S. has found one nation that satisfies its demanding evidentiary standard: Even the United States is convinced that China would more likely than not torture Uighurs who we transfer there. How can that be? After all, the Chinese actually outlawed torture in 1996. Well, it appears that China's lawyers have developed an odd definition of "torture." As one U.N. investigator recently described the Chinese practice:

Although China outlawed torture in 1996, its definition of illegal acts -- those leaving physical marks -- is so narrow that interrogators can employ a wide range of methods contravening UN standards. Suspects are manacled in contorted positions, deprived of sleep and subjected to psychological torture. Some techniques have been given names, such as "reversing an aeroplane", where a victim must remain standing, bent double, with arms splayed upwards and backwards.

Sound familiar?

For more detail on torture in China, see the State Department's recent report.

I'm not sufficiently familiar with the legal questions to have a settled view on whether the government's doctrinal arguments against Parhat's requested remedy are compelling. (But see Parhat's brief, and pages 13-18 of this reply brief in an earlier Uighur case.) But in light of China's established record of abuse -- so substantial that it is more likely than not the Chinese government would torture Parhat, even under Bush Administration's view of what constitutes "torture" -- and in the absence of any evidence that Parhat would be a threat to commit terrorist acts here in the U.S., is it really fair to refuse to allow Parhat's release into the United States simply because China "is keenly interested in [his] return"?
Posted 5:50 AM by Marty Lederman [link]