The United States’ uncomfortable relationship to torture

Today, June 26, is the International Day in Support of Victims of Torture. This year marks the 34th anniversary of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment coming into effect. 162 countries have ratified the Convention, including the United States. Nevertheless, the United States continues to engage in and justify torture.

The Convention defines torture:

“[T]he term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” — Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984, art. 1, para.1) Emphasis added

Nils Melzer, who is the Special Rapporteur for this Convention, issued a report in 2018 which argued that states’ practices employed to deter migration constituted torture. As we noted then, Melzer’s description of the problem, though not directed at any one state, read like a synopsis of U.S. immigration policy:

In response to increasing numbers of…”irregular” migrants arriving at their borders, many States have initiated an escalating cycle of repression and deterrence designed to discourage new arrivals, and involving measures such as the criminalisation and detention of irregular migrants, the separation of family members, inadequate reception conditions and medical care, and the denial or excessive prolongation of status determination or habeas corpus proceedings, including expedited returns in the absence of such proceedings. Many States have even started to physically prevent irregular migrant arrivals, whether through border closures, fences, walls and other physical obstacles, through the externalisation of their borders and procedures, or through extra-territorial “pushback” and “pullback” operations, often in cooperation with other States or even non-State actors. (Melzer 2018, 4)

At the time we wrote about Melzer’s report, we emphasized detention as a method of torture. Detention is arbitrary in the sense that the vast majority of people are held under mandatory detention statutes that provide little space for individual assessment. Because detention is indefinite, people are under added stress, not knowing when they will get out. Conditions in immigrant detention facilities are horrible. Facilities still rely heavily on solitary confinement to manage behavior or punish non-compliance. They routinely neglect the health concerns of those detained, especially mental health concerns, with one result being that nearly half of the people who die in detention commit suicide. Facilities have been dragged into court for the use of forced labor. Above and beyond these factors, for many there is the added torture of separation from family members, including children.

In October of last year, Freedom for Immigrants issued a much more detailed report on detention:

This report focuses on the difficult-to-quantify qualities of immigration detention itself —the uncertainty, the fear, the isolation—and how they affect not only those detained, but also their families and community networks. We identify how systemic isolation plays out in the lived experiences of people impacted by this system and the ways in which people cope with it. The goal of this report is to strengthen community-based resources for resilience and resistance in the face of a purposefully cruel system.

Detention is a form of torture.  As a matter of policy and practice, the U.S. government intentionally makes people suffer while in formal custody in order to serve other objectives. This is torture. The maltreatment of people in detention cannot be dismissed as “incidental to lawful sanctions.” While one might argue that feelings of anxiety and depression are natural side effects of incarceration, one cannot seriously argue that prolonged use of solitary confinement, placing people in freezing rooms, denial of mental health services and other health services, poor food quality, and effective denial of contact with family, friends and even counsel, are incidental to lawful sanctions. Indeed, these practices contravene legal obligations for how people are to be treated.

Inside our borders, we torture every day. At the moment, in the context of a global pandemic, this torture takes on increased severity. People are literally fearing for their lives, as they watch others being held with them get sick. Immigration and Customs Enforcement has changed very little in terms of its practices, continuing to shift people around, deport them, and force them into hearings. In some cases, conditions have reached absurd levels of cruelty. At the Geo Group-managed ICE facility in Adelanto, California, for example, the company has been spraying harsh chemicals intended for outdoor use as the principal means of disinfecting the facility. They have continued this practice even after multiple reports have emerged that the chemical is making people sick – including coughing and sneezing blood. ICE has stood by the company.

All of this has been made worse over the last year and half as the Trump administration has shut down the border to asylum seekers. The administration has forced asylum seekers to wait for their asylum hearings in camps on the Mexico side of the border. The administration has denied people who transit a third country the ability to even seek asylum, unless they are denied in that country first. And, now the administration is sending people who do seek asylum back to Guatemala, El Salvador or Honduras, to first seek asylum in one of the countries – even as the bulk of asylum seekers are fleeing conditions in one of those three countries.

Again, the administration’s response to COVID-19 has only made this situation worse. The United States is now summarily expelling everyone who crosses the border – over 40,000 people since mid-March, including children traveling alone – under an abusive CDC order intended to justify border controls. No one is being allowed a chance to even apply for asylum.

For too long, the United States has sought to legitimate a deterrence strategy that is, let’s be clear, a form of torture. We must call it what it is. As we commemorate the victims of torture, we would do well to consider all those who are incarcerated. We join in the call to #FreeThemAll and to #SaveAsylum. 

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