Editors’ Note: The following post is the ninth installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.
This month, the United States government is expected to appear before the United Nations Committee against Torture in Geneva to present its report on compliance with the international Convention Against Torture. The US will surely say it’s complied with the prohibition on torture and cruel, inhuman or degrading (CID) treatment, and will point to our domestic laws, including the Torture Act and the Detainee Treatment Act, which ban such conduct. But the Obama Administration is also considering saying that, like its predecessor, it does not believe that the Convention Against Torture applies to US actions abroad, even where the United States exercises actual control over individuals outside US territory.
That interpretation was first put forth to the committee in 2006 by the Bush Administration’s then-Attorney General Alberto Gonzalez, who said that the “United States does not accept the concept that “de facto” control equates to territory under its jurisdiction.” He also said that the United States, in its “reservation” to Article 16 of the Convention, defines “cruel, inhuman or degrading treatment” under the treaty to mean only treatment prohibited by the Fifth, Eighth, or Fourteenth Amendments to the US Constitution. US courts have held that these amendments do not protect “aliens” outside the United States. The upshot of these twisted interpretations of the Convention Against Torture is that it does not ban the use of cruel, inhuman and degrading treatment by US officials against detainees in US custody abroad. President Obama himself has since admitted that the United States in fact tortured detainees abroad. How convenient that the international prohibition didn’t apply.
When President Obama took office in 2009, he pledged to reverse the most rights-abusing policies of the Bush Administration, specifically the use of torture and cruel, inhuman and degrading treatment and the indefinite detention without trial of terror suspects at Guantanamo Bay. Many of us watched him sign the executive order that banned the use of torture by US officials both at home and abroad in the oval office, surrounded by an impressive group of retired military leaders who encouraged him, and breathed a sigh of relief.
Not so fast.
Six years later, the Guantanamo prison remains open, holding 149 prisoners at a cost of nearly $3 million per prisoner each year. Dithering on the part of the administration followed by blatant obstruction by Congress has left this failure to fester, and continue to damage the reputation of the United States.
But if Obama can point the finger at Congress for at least part of that debacle, he cannot do so when it comes to the applicability of international law to US conduct. The United States has already signed and ratified the Convention Against Torture. Congress played its part. It’s now up to the president to interpret the treaty, and to announce unequivocally that interpretation to the world. As the president knows, his executive order banning abusive interrogations can be revoked – just like he revoked President Bush’s executive orders that allowed detainee mistreatment. So if he’s still not willing to say that the international treaty applies to US activity overseas – particularly to situations where the United States is actually imprisoning people — then that failure rests squarely on the shoulders of this administration. And that failure will indelibly tarnish its legacy.
Legal experts on both sides of the aisle agree the anti-torture convention applies beyond US borders to those places where the United States exercises control. That’s the view of one this blog’s own founding editors, Harold Koh, whose memo as legal advisor to the State Department lays out the case unequivocally. John Bellinger, his counterpart in the Bush administration, agrees with that interpretation. Beth Van Schaack has eloquently explained in these pages why it’s important for the administration to acknowledge this now and “relinquish an increasingly untenable and ultimately pointless position.”
“Having the courage to make a strategic concession on extraterritoriality would do much to bring to a close a historical chapter marred by allegations that the United States in the past endeavored to create—and exploit—rights-free zones,” Van Schaack writes.
Unfortunately, the United States’ interpretation of international law seems far more influenced by politics than by the basic rules of legal interpretation – and even the long-term interests of the United States. Retired Generals Joseph P. Hoar and Charles C. Krulak wrote a letter to President Obama last week urging him to “reassert US global leadership on torture” by affirming the CAT’s worldwide reach. “In the interest of US national security – and your own legacy on torture – you must stand by this position. There is no room for legal or moral ambiguity on torture.”
The same can be said for the International Covenant on Civil and Political Rights, or ICCPR. Since 1995, the United States has taken the position that its guarantees do not apply to US conduct beyond our borders. The overwhelming weight of international legal opinion disagrees – as evidenced by decisions from the United Nations’ Human Rights Committee, the European Court of Human Rights, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Inter-American Court of Human Rights, and the International Court of Justice. They have all interpreted the treaty’s obligations to ‘follow the flag’ wherever a state exercises effective control in its overseas operations. Of all signatories who have expressed views on the issue, only the United States and Israel interpret the ICCPR’s applicability in this manner.
As with the CAT, Harold Koh wrote a lengthy memo analyzing and explaining why the United States’ interpretation of the ICCPR is wrong, concluding that “the 1995 Interpretation is no longer tenable and the USG legal position should be reviewed and revised accordingly.”
So if international law can be twisted and its authoritative interpretation ignored so blatantly, does the law even matter? Those following the US human rights record since 9/11 could be forgiven for their skepticism.
Of course, hypocrisy among signatories of human rights treaties is hardly a new phenomenon. Eric Posner in Slate recently called the human rights regime “a vast international Potemkin village, a kind of communal effort among states to deceive one another and mainly their citizens, or an excrescence of the bureaucratic imperative to deny error and bad intentions, using whatever legal forms happen to be available.” As an example, he noted that the “nine most repressive countries of 2011, Freedom House‘s ‘Worst of the Worst,’ including Eritrea, Syria, and Turkmenistan, belong to most of the major human rights treaties.”
So what does it matter if the United States signs but interprets those treaties in its own narrow and untenable self-interest?
UN Special Rapporteur Christof Heyns gave a recent talk at Columbia University Law School that provided a more optimistic view. Sure, signatories to the human rights laws continue to violate and misinterpret them. But over time, what’s considered acceptable has shifted. States at least now feel the need to justify their actions, and since the Cold War, the world has seen fewer and less destructive violent conflicts.
Gabor Rona explained more specifically the importance of international human rights law, responding to Posner recently on Lawfare:
“I used to work for the ICRC and saw firsthand what important work human rights and humanitarian law did in our hands to protect detainees and victims of armed conflict. I’m now a member of the UN Working Group on Mercenaries, one of many thematic and country-focused mandates of the Human Rights Council who conduct country visits, take on individual communications (complaints), and report to the General Assembly and Human Rights Council on both advancement and compliance with human rights law. I’ve read the Hamdan decision, which rejected the Bush administration’s premise that Guantanamo detainees have no legal right to humane treatment, and did so on the basis of advances in international law that did not exist before WW II. While on mission for the UN, I spoke to members of the Congolese armed forces who asked with nervous curiosity about this new thing called the International Criminal Court.”
“In fact,” he continues:
“if one wants to make assumptions about cause and effect, one would first take note of all the treaties and mechanisms and soft-law and practice and opinio juris that have come into being since the U.N. Charter and the Universal Declaration of Human Rights heralded the start of the modern human rights era—not just the major human rights treaties, but the treaty bodies, the regional mechanisms, the international courts (both civil and criminal), the considerable weight of the Human Rights Council’s Universal Periodic Review and many special rapporteurs and working groups. Second, one would ask whether humans enjoy more rights in more places since the end of WW II. Newsflash to Mr. Posner: they do, big time. Third, one would then consider that there may be a correlation between the two.”
I will humbly defer to Heyns and Rona on this. And I have unceasing admiration for those who, like them, continue to investigate the crimes and make the legal arguments in an attempt to give that law some teeth. But if President Obama, who rode into office proclaiming the importance of the United States acting as a role model and upholding international human rights, once again defers to politics and provides half-baked answers that continue to undermine the international legal regime he was elected in significant part to restore, it will be more than a little disheartening.
Obama administration officials have sought to present this issue as a technical legal matter that doesn’t have real impact, since “there is no question that torture and cruel treatment in armed conflict are clearly and categorically prohibited in all places,” as National Security Council spokeswoman Bernadette Meehan said recently. But that ignores the legacy left behind by the Bush administration, which violated those prohibitions, even though they were the law then, too. As a result, much of the world continues to believe the United States is looking for a loophole to continue to abuse detainees with impunity. That’s also why release of the Senate Select Committee on Intelligence report on the CIA’s use of torture remains so important, as 12 Nobel Peace Prize laureates reminded the president last week. The United States – and President Obama — cannot afford to leave the world with that legacy. Making clear that the US government understands that the torture convention applies to its actions abroad is a critical step to reversing it.