Thomas R. Pickering is a member of the Constitution Project’s Task Force on Detainee Treatment. He was undersecretary of state for political affairs from 1997 to 2001 and served as ambassador and representative to the United Nations from 1989 to 1992.
It’s never easy in this volatile world to advance America’s strategic aims. For more than four decades, in the service of Democratic and Republican presidents, it was often my job to persuade foreign governments to adhere to international law and observe the highest standards of conduct in human rights — including the strict prohibition of torture. A report released Tuesday by an independent task force on detainee treatment (to which I contributed) makes it clear that U.S. officials could have used the same advice.
Unfortunately, the U.S. government’s use of torture against suspected terrorists, and its failure to fully acknowledge and condemn it, has made the exercise of diplomacy far more daunting. By authorizing and permitting torture in response to a global terrorist threat, U.S. leaders committed a grave error that has undermined our values, principles and moral stature; eroded our global influence; and placed our soldiers, diplomats and intelligence officers in even greater jeopardy.
It’s not just the Bush-Cheney administration that bears responsibility for diminished U.S. standing, although the worst abuses undeniably took place in the years immediately after the Sept. 11, 2001, attacks. The Obama administration also has failed to be as open and accountable on such fundamental questions of law, morality and principle as a great power that widely supports human rights needs to be.
What can be done to mitigate the damage and set this country on a better course? First and foremost, Americans need to confront the truth. Let’s stop resorting to euphemisms and call “enhanced interrogation techniques” — including but not limited to waterboarding — what they actually are: torture. Torturing detainees flies in the face of principles and practices established in the founding of our republic, and it violates U.S. law and international treaties to which we are a party. Subjecting detainees to torture, no matter how despicable their alleged crimes, runs counter to the values embodied in the U.S. Constitution.
Too much information about the abuse of detainees remains hidden from the American people. Specifically, the Obama administration’s ongoing concealment of the details about our use of torture has made it impossible for the United States to comply with its legal obligations under the U.N. Convention Against Torture and has contributed to a disturbing level of public support for torturing suspected terrorists.
President Obama should direct relevant officials to declassify as many related documents as possible as quickly as possible — starting with the more than 6 million pages of classified documents that were the basis for the Senate intelligence committee’s recent report on the CIA’s interrogation program, and the still-secret report itself — so that the American people may finally learn what was done in our name. Admitting our mistakes is the only legitimate basis on which we can reassure the world that America remains committed to the rule of law and to upholding human rights and democratic values.
Second, Congress needs to work with the administration to close the loopholes that allowed torture to occur under a pretense of legality. In 2009, Obama signed an executive order giving interrogators clear instructions about permissible techniques. But future presidents could reverse course with the stroke of a pen — and no public notice.
To ensure that cannot happen, the federal Anti-Torture Statute should be amended to make clear that the deliberate infliction of severe pain and suffering is torture — regardless of the duration of the torment being inflicted. The War Crimes Act should be amended to make clear that cruel, inhuman or degrading treatment of detainees is a federal crime even when it falls short of torture. Instead of being told to rely on secret legal memos or doctors’ unethical monitoring of brutal interrogation sessions, interrogators should be given unambiguous orders that all detainees are to be treated in strict compliance with Common Article 3 of the Geneva Conventions, which is the basic provision of international law outlawing torture. And there should be clear, public rules ensuring prompt access to detainees by the International Committee of the Red Cross.
Third, the United States must not transfer detainees to torture in other countries. Such transfers, known as “renditions,” have occurred under Presidents Bill Clinton, George W. Bush and Obama — despite the fact that they violate the Convention Against Torture. In part, this is because of a policy of reliance on “diplomatic assurances” from other countries that detainees would not be tortured, despite clear evidence that these assurances were not credible. In part, this is because the United States has refused to acknowledge that the prohibition against transfers to torture is legally binding outside of U.S. territory. Both must change.
Democracy and torture cannot peacefully coexist in the same body politic. Successful human rights diplomacy and torture can’t either. Our country and its place in the world — as well as the Americans bravely serving in military, intelligence and diplomatic posts around the globe — deserve nothing less.
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