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A Nation That Tortures

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Is America a nation that tortures? The question is being asked all around the world. It’s not a matter of idle speculation. Under international treaties, which many nations, not being liberated by the law-what-law?mantra of the Neocons, treat very seriously, there are specific prohibitions about cooperation with nations which torture. In particular, there is article 3 of the Convention Against Torture, which forbids any state party to return a prisoner to a nation where he is likely to be tortured.

In 2006, I had an off-the-record discussion with the chief law enforcement officer of one of America’s most important allies. Having read the torture memoranda out of the Justice Department, and having seen the reports issued by the Department of the Army dealing with abuses in Abu Ghraib, Bagram and Guantánamo, I asked, is your Government in a position to engage in prisoner exchanges with the Americans or to allow American interrogators unfettered access to persons in your Government’s custody? He responded in a manner that showed the question had been studied carefully. “I can assure you that we take our obligations under article 3 very seriously. We will not speak publicly about this, but of course we have terminated cooperation with the United States in ways that would violate article 3. And of course we have reached the only possible conclusion, which is that the United States has embraced torture as a matter of formal policy.” This is a nation which continues to be one of our dwindling number of allies, but it faces increasingly steep challenges in cooperating while it complies with the requirements of law.

And this judgment is a very broad one—now shared almost universally by America’s allies. We don’t have to consider what the enemies think.

More evidence of this phenomenon in a very important decision handed down on Thursday by Canada’s Federal Court. Professor Jaya Ramji-Nogales, who’s been patiently tracking the matter, furnishes a report:

Yesterday, the Canadian Federal Court issued an opinion in the case Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v. Her Majesty The Queen. This case challenges the “Safe Third Country Agreement” between Canada and the United States that came into force in December 2004. This agreement provides that, with limited exceptions, individuals who first enter either Canada or the United States and then attempt to cross a land border into the other country in order to lodge an asylum claim must be returned to claim asylum in the first country they entered. In assessing the constitutionality of the agreement, the Canadian Court found that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture — specifically naming the Maher Arar case as an example of the United States’ failure to protect.

As one of the experts who described the ways in which U.S. asylum law (in particular, the one-year filing deadline) violates international law, I am proud to note that the court found “the Applicant’s experts to be more credible, both in terms of their expertise and the sufficiency, directness and logic of their reports” and “more objective and dispassionate in their analysis and report” than the government’s experts. Of particular note, the Court found that “it would be unreasonable to conclude that the one-year bar, as it is applied in the U.S., is consistent with the Convention Against Torture and the Refugee Convention” and that this bar “has a disproportionate impact on gender and sexual orientation claims” for asylum. The Court also found that women making asylum claims based on domestic violence are not sufficiently protected under U.S. law. The long decision is well worth a read, and while it bodes well for asylum seekers in Canada (assuming that the judge’s final order, after further submissions, follows this opinion, and that the decision survives appeal), it reads as a damning critique of the treatment of those seeking protection in the United States.

That’s the long version. Here’s the short version: “We do not torture?” That claim has been formally reviewed by a court and found to be a lie.

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