It has been nearly six years since President Obama, on his third day in office, signed an executive order banning torture or cruel treatment of U.S. detainees.
But while the order reinforced laws that already prohibited such treatment, the administration has never formally reversed a 2005 interpretation by the Justice Department, under President George W. Bush, that an international treaty against cruelty did not apply “with respect to aliens overseas.”
On Wednesday, administration officials were questioned by a U.N. committee in Geneva that monitors compliance with the treaty — officially the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Alessio Bruni of Italy, one of the panel’s chief investigators, began the two-day hearings by listing American actions since the Sept. 11, 2001, attacks such as CIA renditions to secret detention sites, the Associated Press reported.
Mary McLeod, the State Department’s acting legal adviser, acknowledged U.S. policies “did not always live up to our own values,’’ but she insisted there are “ongoing efforts to determine why lapses occurred.”
The Obama administration has given no public indication of whether it plans to use the U.N. hearings to tie up one of the remaining loose ends on the torture issue left by its predecessor.
Some in the Defense Department “reflexively defended the status quo position” when the issue was put to an interagency committee of administration lawyers this year, said a senior administration official who spoke on the condition of anonymity about the internal discussions. Others argued that further clarification was unnecessary, since U.S. law and Obama’s position were clear.
In a written report to the committee last year, the State Department noted that “under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction.”
But the committee, in a list of questions it has given the administration, as well as senior U.S. lawmakers and international human rights advocates, have insisted that is not enough.
“The U.S. government has a chance to reassert U.S. global leadership on human rights by making it unambiguously clear that [it] doesn’t condone torture anywhere,” said retired Marine Gen. Joseph P. Hoar, the former head of U.S. Central Command and chairman of a group of retired senior officers who stood at Obama’s side when he signed the executive order against torture.
“The trip to the ‘dark side’ after 9/11 tarnished America’s reputation,” Hoar wrote to Obama late last month. He described the Geneva meetings as a chance “to reassert U.S. global leadership on torture.”
In an Oct. 31 letter to the president, Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Majority Whip Richard J. Durbin (D-Ill.) urged him to use the Geneva appearance “as an opportunity to reaffirm our country’s full commitments” under the treaty “and to promote a broad understanding of the extraterritorial reach of that part of the Convention.”
“It is crucial that the United States signals to the world that we have put the dark chapter of the Bush administration’s torture program behind us,” they wrote, “and are not seen as attempting to leave open the possibility of using so-called ‘enhanced’ interrogation techniques ever again.”
The issue has sparked a discussion among former government legal advisers. In a Politico article he labeled as a letter to the president, Harold Hongju Koh, who served as State Department legal counsel in Obama’s first term, advised against a “compromise” response to committee queries that “would leave purposefully ambiguous whether the U.S. considers those practices illegal, not just ill-advised” under international law.
“A straightforward ‘yes’ would reaffirm your presidency’s unequivocal rejection of torture and cruel treatment as illegal tools of American power,” Koh wrote. “Great nations should not waffle on such matters of principle.”
John B. Bellinger III, who held the State Department legal job during Bush’s second term, wrote on the Lawfare blog last month that he had headed the delegation the last time the United States appeared before the committee, in 2006.
“This was not an easy experience,” he wrote, with the U.S. appearance coming at the apex of international criticism of U.S. detention and interrogation practices in Iraq, Afghanistan and Guantanamo Bay — and several years after Abu Ghraib. “Then, as now,” wrote Bellinger, who often clashed with more-conservative lawyers in the administration, “the U.S. positions articulated in Geneva were the result of arduous interagency discussions, and were not simply the views of the [State Department] Legal Adviser.”
The year before Bellinger’s appearance, Attorney General Alberto R. Gonzalez told Congress that the Justice Department had concluded the treaty contained “no legal prohibition . . . on cruel, inhuman or degrading treatment with respect to aliens overseas.” The same conclusion had been reached in a secret Department of Justice memorandum clarifying “certain techniques that may be used in the interrogation of high value al-Qaeda detainees.”
Although the jurisdictional question on cruel treatment has garnered the most attention on the eve of the Geneva meeting, other questions are on the committee’s list, including the treatment of detainees at the U.S. military prison at Guantanamo Bay, Cuba.
In previous written replies to committee inquiries, the administration has noted Obama’s public commitment to closing the facility and enumerated congressional roadblocks to doing so.
The committee is likely to ask about a treaty provision calling for judgment and punishment of those who have violated international and U.S. constitutional prohibitions against cruel and inhuman treatment, as well as domestic issues including solitary confinement in U.S. prisons.