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.