Human Rights Council

Statement by Ambassador Warren W. Tichenor

Reports of Special Rapporteurs
(Torture, Working Group on Arbitrary Detention, Independence of Judges and Lawyers)

Wednesday, September 20, 2006
Afternoon Session

Thank you, Mr. President, for the opportunity to respond to the three reports presented this afternoon.

In any society it is difficult to balance both freedom and security – this is particularly true in time of war, as we seek to ensure the latter while preserving the former – we seek to do so in a thoughtful, just fashion.

We therefore support the efforts of all three Special Rapporteurs to hold states accountable.

As to the Special Rapporteur on Torture, we appreciate Mr. Nowak’s commitment to combating torture worldwide and, of course, share this commitment.  As we demonstrated in our appearances before the Committee Against Torture and the Human Rights Committee earlier this year, the United States takes its obligations in this area very seriously.  As President Bush stated, we neither permit, tolerate or condone torture.  It is against our laws and against our values.

At the same time, we would note that there is an ongoing debate in the international community related to a number of legal issues raised in Mr. Nowak’s report.  While we share his concern about the potential for misuse of diplomatic assurances, we cannot concur that states should be prohibited outright from resorting to credible assurances in appropriate cases.

We would like to emphasize that diplomatic assurances are only a tool that may be used in appropriate cases. As the General Assembly put it in a consensus resolution adopted last fall, they do not release states from their legal obligations.  They are not a substitute for a case-specific assessment.  In our own practice, there have been cases where the United States has considered the use of diplomatic assurances, but declined to return individuals because the United States was not satisfied such an assurance would satisfy its obligations.

With regard to the report of the Working Group on Arbitrary Detention presented by Ms. Zerrogui, the United States is pleased that the Working Group recognizes the need to provide states with the opportunity to redress alleged violations through domestic legal frameworks, prior to intervention by the Working Group.  Such a prudential approach is particularly applicable to those countries, like the United States, that afford extensive due process protections.

The Report mentioned the case of five men who were arrested and convicted in U.S. Federal court for their involvement in a long-term and entrenched covert network in service to the Cuban Directorate of Intelligence.  These five individuals – two U.S. nationals and three Cubans – were convicted of acting as agents of a foreign government, without required notice to the United States, following a jury trial.  Three also were convicted of conspiracy to commit espionage, and the evidence showed persistent efforts over many years to penetrate U.S. military installations. The accused received full protection of the U.S. Constitution and laws, including defense counsel, investigators, and experts provided at U.S. government expense.  After a trial lasting seven months, all five were convicted of serious offenses and given lengthy prison sentences.  The trial was open and its progress was widely reported in the press at the time.

On August 9, the U.S. Court of Appeals affirmed the convictions and the fairness of the trial.  The court described the process whereby the jury was selected as a “model” for high-profile cases. Defendants will have the right to seek to appeal this decision to the Supreme Court.  During their trial, the five defendants never denied their covert activities in service to the Government of Cuba.  My government firmly believes that these five individuals were given and have exercised the extensive rights and protections afforded to all individuals under the U.S. criminal justice system. 

The Report also mentioned the subject of secret prisons.  As my delegation explained yesterday, on September 6 President Bush announced that 14 prisoners under U.S. control in the war against Al Qaeda have been transferred to the facility at Guantanamo Bay, where the ICRC will have access to them.  The President then announced that with this transfer there are no detainees remaining in the CIA program.

These individuals are extremely dangerous.  They provided information on imminent terrorist attacks that saved innocent lives in the United States and elsewhere in the world. 

As to the Special Rapporteur on the Independence of Judges and Lawyers, the United States appreciates his report.  As a country with a robust legal system that offers extensive due process protections, we agree that the topics dealt with by the Special Rapporteur are crucial.

Finally, I note that all three Special Rapporteurs mentioned the situation of the detainees at Guantanamo Bay in their reports.  We will respond in detail during the interactive dialogue on the joint report scheduled for tomorrow.

Thank you, Mr. President.