Will Obama Claim Torture Convention Doesn’t Apply Sometimes?

The New York Times has a very interesting report about an upcoming hearing before the UN Committee Against Torture, which oversees how nations comply with the UN Convention Against Torture, in Geneva. The White House is sending a delegation to the hearing, but it is unclear what position they will take on the question of whether that treaty applies to the CIA or the military when operating on military bases outside of the United States.

When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.

Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute “acknowledges and confirms existing obligations” under the treaty, the United Nations Convention Against Torture…

State Department lawyers are said to be pushing to officially abandon the Bush-era interpretation. Doing so would require no policy changes, since Mr. Obama issued an executive order in 2009 that forbade cruel interrogations anywhere and made it harder for a future administration to return to torture.

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

The internal debate is said to have been catalyzed by a memo that the State Department circulated within an interagency lawyers’ group several weeks ago. On Wednesday, lawyers from the State Department, the Pentagon, the intelligence community and the National Security Council met at the White House to discuss the matter, but reached no consensus.

Bernadette Meehan, a National Security Council spokeswoman, said Mr. Obama’s opposition to torture and cruel interrogations anywhere in the world was clear, separate from the legal question of whether the United Nations treaty applies to American behavior overseas.

No, I’m afraid it’s not. Obama’s position on this has been entirely incoherent. As a senator, he railed against torture and repeatedly invoked the UN CAT, but he has blatantly violated that convention as president by protecting those who ordered and engaged in it. And it is monumentally absurd to even contemplate the claim that the convention does not apply outside of the United States. The text could not be more clear:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2.No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

An overseas military base is territory under our control. And the notion that the CAT has a loophole that says “unless you’re on a ship” or “unless you’re in a CIA safe house” is equal parts ridiculous and barbaric.

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  • colnago80

    Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

    Brayton says:

    An overseas military base is territory under our control.

    Not to be overly pedantic about this but there would seem to be a question that a Philadelphia lawyer (not Larry Klayman or Matt Stever) could raise as to whether “jurisdiction” and “control” are synonyms in this regard.

  • Silent Service

    I see that we are getting ready to embarrass ourselves trying to get out of our obligations again. GW’s presidency will haunt us for a long damn time thanks to Obama fearing backlash at home.

    I’m staring to think that being elected president legally requires a person to be neutered.

  • dingojack

    SLC – so are you saying that US bases oversea are not under US law, but rather the law of the resident country?

    Dingo

  • http://www.facebook.com/profile.php?id=523300770 stuartsmith

    You could make a pretty solid argument, I think, that a CIA safehouse in another country is not under US jurisdiction at all, any more than the neighbors house that is owned by a US citizen to use on vacation, and therefore that preventing the CIA from torturing people in that safehouse is solely the responsibility of the government whose jurisdiction the safehouse occupies, and not an American problem at all. I mean, the laws don’t state that you can’t give orders to torture, or punish people for not following them, only that if you do follow them it’s your responsibility and not that of your boss. It also doesn’t say that government officials or employees can’t torture people, just that they can’t do so within the jurisdiction of the government they work for, which is basically their territory plus military bases and embassies. (In the case of the US, I believe it also includes a few other things like any plane that is in the air and either originates or intends to land in US territory.) The point is, under the law as you posted it, if you’re in another country it’s their responsibility to stop you torturing, not your own.

  • colnago80

    Re dingojack @ #3

    Hey, I’m just asking a question here. I’m not a Philadelphia lawyer.

  • colnago80

    Re stuartsmith @ #4

    So you’re saying that a US military base on foreign soil could be construed as being under US jurisdiction but a CIA safe house might not be (presumably its existence is unknown to the foreign country in which it is located, wink, wink).

  • eric

    But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad.

    So just withdraw from the treaty. Whe one nation understands an international treaty completely differently from the way the other signees understand it, that nation has already withdrawn from it in deed, if not in word.

    @4:

    You could make a pretty solid argument, I think, that a CIA safehouse in another country is not under US jurisdiction at all

    I disagree. If you rent a house from me and (without my complicity) torture someone in it, every single sane person in the world is going to recognize that you are at fault for the torture, not me. The rental agreement places that location under your jurisdiction. That is pretty much what a rental agreement is – the landlord handing over temporary control of the space to the renter.

    Now sure, as landlord I am still responsible for keeing the ceiling from falling in or removing mold, but you the renter are responsible for the use and misuse of that space.

  • John Pieret

    There is, as in most legal issues, some room to play around with in the meaning of “jurisdiction.” Worse, when we “renditioned” people to third-party torturers, we probably didn’t violate the terms of the Convention, though we certainly violated its spirit as well as simple human morality.

    What one can dream of, if not expect, is that, after these midterm elections and his presidency is all but over, Obama will move to bring Bush, Cheney, et al. to justice and dare the House to vote Articles of Impeachment.

    Naw, it’ll never happen.

  • pickwick

    The only respectable position to take on this is, “Our lawyers tell us there’s some doubt about the wording of the treaty. We urge that the wording be strengthened to cover any loopholes, and pledge, in the meantime, to honor the spirit of the treaty. To show the world that we’re serious about honouring this pledge, we will henceforth allow human rights inspectors full access to our network of CIA “black sites” and other secret prisons.” The likelihood of this happening? 0%.

    Obama’s governed across from the most outrageously ignorant/cynical/demogoguic opposition imaginable, but that’s not much defense against the fact that he’s missed so many easy calls that were entirely up to him.

  • eric

    There is, as in most legal issues, some room to play around with in the meaning of “jurisdiction.”

    Yes, but my point is that if one county is using the word differently from all other signature countries, then in a practical sense they are not following the treaty. Treaties are essentially agreements on how you’re going to act, and if you act in a way that everyone else thinks violates the treaty, you have in practice withdrawn from it.

    Worse, when we “renditioned” people to third-party torturers, we probably didn’t violate the terms of the Convention

    I agree with you here. The convention needs to be updated to forbid signees from handing subjects over to nonsigning countries for proxy torture. Otherwise the convention provides signees with a perverse incentive for discouraging allies from signing it.