Ahilan Arulanantham [staff attorney, ACLU of Southern California]: "I need to start with two caveats. First, I am no expert in either international or comparative law, and I know almost nothing about the law of Belgium or France. Second, in the interest of full disclosure, I was lead counsel (along with Brad Phillips from Munger, Tolles, and Olson in Los Angeles) in the nationwide class action challenging the government's forcible drugging policy in Diouf v. Chertoff. We settled that case after the government agreed to change its policy to never forcibly drug someone for deportation purposes without first obtaining an order from a federal court authorizing the drugging.
That being said, I'm not at all surprised that other countries objected to our government's shocking practice of forcibly injecting people with powerful antipsychotic drugs in order to deport them. Article 1 of the Convention Against Torture explicitly defines torture to include "severe pain or suffering, whether physical or mental," and our own legislation implementing the Convention Against Torture defines torture to include "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." 18 U.S.C. 2340. (In fact, under federal law, committing such acts outside of the United States is a very serious crime punishable by up to 20 years in prison. 18 USC 2340A).
I would like to know whether the officials in Belgium, France, or any other country ever put their objections to our practice in writing, but because the federal government has provided almost no documents in response to the ACLU's FOIA request on the subject, I can only speculate as to whether the officials objected to the practice because they thought it was torture.
As for our suit, we focused our objection to the policy on the Due Process Clause because it was such an obvious violation under the controlling cases. As we explained in our preliminary injunction papers, it's crystal clear that the government cannot give antipsychotic drugs to people who are not mentally ill under Washington v. Harper, Riggins v. Nevada, Sell v. United States, and every circuit that has addressed those Supreme Court cases. I think it was very telling that the government chose to settle rather than attempting to defend the legality of its practice. After the District Court rejected the government's motion to dismiss on jurisdictional grounds, the government changed the policy.
It's also important to note that although the government uses the term "sedation" to describe the government practice, in fact the government was not using just sedatives, but also a powerful antipsychotic drug known as haldol (the technical name is haloperidol). As several prominent psychiatrists (including our expert Dr. Mark Mills, whom the government had used as an expert in several other cases) have noted, antipsychotics are far more dangerous and profoundly disturbing when given to sane people than are sedatives. That is why we try to refer to the practice as "forcible drugging" rather than "forcible sedation."
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