Harold Koh’s New “Memo to the President” on the Torture Convention

President Obama must soon decide whether to instruct a US delegation, which will appear before a UN body in Geneva next week, whether to equivocate, reject, or accept that the Torture Convention’s ban on cruel, inhuman, and degrading treatment applies extraterritorially and in situations of armed conflict. [For earlier coverage at Just Security see here.]

Last week, we held a panel discussion with three Just Security editors—Harold Koh, Shaheed Fatima, and myself—at NYU (see the video here). On the Torture Convention decision now before the administration, Harold had this to say during the Q&A:

“The basic rule if you are the head of a delegation is you don’t get on a plane unless you have your instructions. And my own personal rule is you don’t get on the plane unless you have instructions that you are ready to follow.”

For readers following these discussions, Harold has now penned a “Memo to the President: Say Yes to the Torture Ban,” which appeared in Politico Magazine last night. Here are some highlights:

1. On the continuity with the Reagan and George H.W. Bush Administrations:

When former judge Abe Sofaer, the State Department’s legal adviser under Presidents Reagan and George H.W. Bush, first presented the Torture Convention to the Senate for ratification in 1990, he never suggested that any of its provisions were territorially limited. … When the George W. Bush Justice Department claimed in a 2005 memo that the anti-cruelty provision of the treaty (Article 16) was territorially limited, Judge Sofaer rejected that claim, because “[r]estricting enforcement of [that article] to U.S. territory” “would fundamentally undermine the treaty’s purpose of requiring every State to undertake to prevent all ‘cruel, inhuman or degrading’ treatment by any State in any territory under its ‘jurisdiction.’”

2. On the discontinuity with the George W. Bush Administration:

You can follow the last administration and give a qualified “compromise” answer, which would leave purposefully ambiguous whether the U.S. considers those practices illegal, not just ill-advised. Or you can secure your legacy ….”;

“[I]n 2006, Bush administration officials walked back this promise. They told the Committee Against Torture that four provisions of the treaty “are geographically limited to [the U.S.’s] own . . . territory.” … While serving as your State Department’s legal adviser, I examined the Bush administration claim in detail and left behind a 90-page memo explaining that, in my legal opinion, U.S. policy makers cannot plausibly claim that the torture treaty does not apply abroad or in armed conflict. Our research (see page 43) showed that before the secret 2005 Justice Department memo—which your administration later revoked—no U.S. official had claimed a loophole to the treaty permitting extraterritorial cruelty.”

3. On the continuity with President Obama’s prior positions:

As a senator in 2005, you joined a bipartisan group—led by your future presidential rival John McCain—supporting legislation that unambiguously prohibited U.S. personnel from subjecting any individual in their “physical control” to cruel treatment “regardless of nationality or physical location.” In so doing, you told the Senate that that law “acknowledges and confirms existing obligations” under the Convention Against Torture.”

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.