Secret Diplomatic Relations Not Enough to Beat Convention Against Torture’s Protections

On January 10, 2008, a Federal judge in Pennsylvania ruled that the Bush administration cannot rely on secret diplomatic assurances that a foreign national will not be tortured if removed to his or her home country. Holding that, without an independent review of these assurances, torture cannot be adequately insured against, the court stated that, to find in the favor of the Department of State “would be a farce.”

The Convention Against Torture (“CAT”), ratified by the US in 1994 prohibits the US from transferring a person to another state where there are substantial grounds for believing that that person would be in danger of being subjected to torture. However, Article 3 of the treaty states that, if the government receives assurances from that country that the individual will not be tortured, and if it determines that these assurances are reliable, the State Department can have the individual removed to that country and this decision is not subject to review by an Immigration Judge, the Board of Immigration Appeals, or by an asylum officer.

Sameh Khouzan, an Egyptian national, fled to the United States ten years ago, and sought to stay here on the grounds that he had been imprisoned and tortured by the Egyptian police when he refused to convert from Coptic Christianity to Islam. He was granted relief from removal under the Convention Against Torture in 2004, after a finding that it was “more likely than not” that he would be tortured if returned to Egypt.
On a routine visit to immigration authorities in May 2007 he was abruptly detained by officers from Immigration Customs and Enforcement. He was informed that the State Department had secured a promise from Egypt that he would not be tortured, and that his deportation was therefore imminent. Neither Mr. Khouzan nor his attorneys were allowed to see a copy of these assurances or to probe them in any way.

The American Civil Liberties Union called Egypt’s assurances an “empty promise”, and labeled them “inherently unreliable and unenforceable”, noting that the Egyptian authorities are notorious for their use of torture.

The court’s decision is seen to be an embarrassing body blow to the Bush administration’s policy of seeking the return of those otherwise eligible to remain in the United States under the Convention Against Torture.