Last week in Geneva, the U.S. delegation appeared before the Committee Against Torture and announced important changes to the U.S. government’s legal position regarding the Convention Against Torture (CAT), which the U.S. ratified 20 years ago. When asked in 2006 if all provisions of the torture treaty applied without exception, the Bush administration answered, in effect, “no, some provisions do not apply either outside U.S. territory or in times of armed conflict.” This time, by contrast, the Obama administration answered “yes”: as a legal matter: “[t]here should be no doubt: the U.S. affirms that torture and cruel inhuman and degrading treatment are prohibited at all times and in all places and we remain resolute in our adherence to these prohibitions.” By so saying, the Obama delegation explicitly changed the USG’s official position, relegated the Bush position to the dustbin, and took a significant step forward in recognizing application of the treaty extraterritorially and in armed conflict.
The initial response to the U.S. presentation has been muted. A former Bush administration lawyer minimized the change by calling it “modest but important.” A leading human rights group called the change “significant but inadequate.” This unlikely alliance is unsurprising. Administrations rarely praise their successors for changing their legal positions; human rights advocates rarely praise governments for making changes that they believe should have happened long ago.
Yet make no mistake: America’s unequivocal yes to the universal application of the Torture Ban marks a watershed moment. The question now is how to build upon it.
Since the Supreme Court’s 1993 decision in Sale v. Haitian Centers Council, the U.S. has generally argued for strict territoriality in human rights treaties, without regard to their substance. Meanwhile, the rest of the world has uniformly acknowledged some kind of extraterritorial reach for those same treaties, without reaching consensus on what the precise legal test for geographic scope should be. This difference in legal views had left America increasingly isolated from the rest of the human rights world. In that world, as Lou Henkin unforgettably put it, the U.S. has too often played the role of a “flying buttress” supporting the human rights cathedral from the outside, rather than a pillar, supporting the structure from within. Last week’s decision finally frees the U.S. to engage this global legal debate in search of a sounder, more durable relationship between the U.S. and the international human rights system.
The Bush administration’s 2006 presentation to the Committee Against Torture had clung to three legal myths: that there are legal gaps in the treaty’s coverage; that some provision of the treaty apply only in American territory; and that the Torture Convention does not apply in wartime settings, where –according to the Bush administration–under the doctrine of lex specialis, the only rules that matter are the rules of international humanitarian law.
The Obama administration’s presentation this week debunked all three myths: legal gaps, strict territoriality, and total displacement.
First, as National Security Council Spokesperson Bernadette Meehan stated:
[A]ll U.S. personnel are legally prohibited under international and domestic law from engaging in torture or cruel, inhuman, or degrading treatment or punishment at all times, and in all places. There are no gaps, either in the legal prohibitions against these acts by U.S. personnel, or in the United States’ commitment to the values enshrined in the Convention, and the United States pledges to continue working with our partners in the international community toward the achievement of the Convention’s ultimate objective: a world without torture (emphasis added).
Second, in 2006, Bush administration officials told the Committee Against Torture that certain treaty provisions “are geographically limited to [the U.S.’s] own . . . territory.” While serving as State Department Legal Adviser, I examined the Bush administration claim in detail and left behind a 90-page memo explaining why, in my legal opinion, U.S. policy makers could not plausibly claim that the torture treaty’s prohibitions on cruel treatment do not apply abroad. Indeed, our research (see page 43) showed that before the secret 2005 Justice Department memo—which the Obama administration later revoked—no U.S. official had claimed the existence of a loophole to the treaty permitting extraterritorial cruelty. This week, Acting Legal Adviser Mary McLeod closed that loophole, stating: “The answer to the question whether the U.S. will abide by the universal ban on torture and cruel treatment in armed conflicts, or beyond U.S. borders, including Bagram and Guantanamo, is unequivocally, yes.” Similarly, NSC’s Meehan left no doubt that “[i]n contrast to positions previously taken by the U.S. government, the delegation will affirm that U.S. obligations under Article 16, which prohibits cruel, inhuman, or degrading treatment or punishment, do not apply exclusively inside the territorial United States” (emphasis added).
Third, in 2006, the Bush administration told the Committee Against Torture:
At the conclusion of the negotiation of the Convention, the United States made clear “that the convention . . . was never intended to apply to armed conflicts. . . .” The United States emphasized that having the Convention apply to armed conflicts “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.” No country objected to this understanding.…[T]he United States maintains its view that the law of armed conflict is the lex specialis governing the detainee operations that we will discuss … (emphasis added.)
Last week, the Obama administration rejected the Bush administration’s suggestion of “total displacement” of human rights law by the laws of war, stating:
[A] time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict. The obligations to prevent torture and cruel, inhuman, and degrading treatment and punishment in the Convention remain applicable in times of armed conflict ….
Given these “Three Nos”—no legal gaps, no strict territoriality, and no total displacement by the laws of war—why the discontent with the Obama administration’s new position?
By its terms, the Torture Convention limits certain duties to “any territory under [a State Party’s] jurisdiction.” These duties include the legal obligations to “take effective legislative, administrative, judicial or other measures to prevent” acts of torture or “other acts of cruel, inhuman or degrading treatment” (Arts. 2 and 16); to take an offender into custody (Art. 6); to extradite or submit a case to authorities for prosecution (Art. 7(1)); to ensure the right of victims to complain and to have their case examined by competent authorities (Art. 13); and to ensure an enforceable right to compensation and full rehabilitation for victims of torture (Art. 14). Last week in Geneva, the U.S. delegation acknowledgedthat these provisions bind it legally wherever the U.S. government “controls as a governmental authority”– including on Guantanamo, U.S. ships and aircraft– which was the language the Reagan administration first used when proposing the treaty for ratification in 1990 (see my memo, p. 35). Yet some human rights groups found it ominous that the administration chose that verbal formulation, apparently fearing that the new U.S. legal position “appears to exclude” overseas sites such as former “black site” prisons and American military and detention camps in Afghanistan and Iraq. These groups noted that the new Obama position did not use the phrase used by the Committee Against Torture itself: that the territorially limited provisions apply anywhere a state exercises “effective control.”
My own January 2013 Memo had similarly concluded that obligations applicable in any territory under a state’s jurisdiction should apply wherever a government “exercises sufficient effective control to be able to exercise the relevant legal or regulatory authority.” But it is not yet clear how significant that linguistic difference might prove to be. As Sarah Cleveland has clarified, the CAT has some universal prohibitions and some territorially-limited provisions. The prohibition against torture and cruel treatment is a universal prohibition, not limited to “any territory under [a State’s] jurisdiction.” Independent of the CAT, torture and cruel, inhuman or degrading treatment are comprehensively banned under both U.S. and international law. As McLeod informed the CAT Committee last week, President Obama’s January 22, 2009 executive order bans torture and cruel, inhuman or degrading treatment “consistent with the Convention Against Torture” in situations of armed conflict or wherever the U.S. exercises effective control. The Detainee Treatment Act prohibits cruel treatment comprehensively, as do international humanitarian law and customary international human rights law. Given these clear legal mandates, McLeod was expressing a categorical legal prohibition when she said, “[t]here should be no doubt: the U.S. affirms that torture and cruel inhuman and degrading treatment are prohibited at all times and in all places and we remain resolute in our adherence to these prohibitions” (emphasis added).
It is true that McLeod’s “unequivocal yes” did not define the exact sources of law that universally bar torture and cruel inhuman or degrading treatment. Nor did she go so far as to say that such conduct is prohibited at all times and in all places because of the Torture Convention. It may well be that the administration left ambiguity on that point because the U.S. Government still does not share a single view on this issue. There presumably are no black sites currently operating abroad controlled by the U.S. government; the U.S. is drawing down its detention operations in Afghanistan; and under U.S. law, the Obama Executive Order and the Detainee Treatment Act now comprehensively ban torture and cruel treatment wherever the U.S. exercises effective control. Perhaps because the legal ban is already comprehensive, the government’s lawyers did not feel a pressing reason to resolve this delicate issue of treaty interpretation right now. Instead, they decided simply to state that torture and cruel treatment are comprehensively barred by international and domestic law. But even if the Obama administration has not articulated the full outward scope of the U.S. legal position, the delegation made it clear that the absolutist Bush positions on both legal gaps regarding armed conflict and strict territoriality had been repudiated.
In the same way, last week’s presentation also plainly overturned the Bush administration’s approach to “total displacement” of international human rights law by international humanitarian law. John Bellinger recently suggested that the Obama administration simply “reaffirmed” the Bush administration position on this issue with somewhat different language, and that in fact his own 2006 statement to the CAT accords with the armed conflict position stated in my January 2013 memo.
I do not see how this view accords with mine, particularly given that—in analyzing the total displacement argument in January 2013—my memo noted (p.3):
Although the prior administration took a different position, I conclude that it is clear that the [Torture] Convention was intended to apply in situations of armed conflict. Article 2 of the Convention on its face plainly states that neither war, nor the orders of a superior officer, constitutes an exception to the prohibition on torture. That was also clearly the view of the U.S. Executive and Senate at the time of ratification, which reviewed the Convention’s consistence with the Uniform Code of Military Justice and adopted implementing criminal legislation that applies, inter alia, to the U.S. armed forces abroad. This conclusion also is consistent with international law rules regarding lex specialis, under which the Convention Against Torture, as the later-in-time, generally applicable, and more specific treaty obligation, must be understood to be applicable in armed conflict to complement, not to contradict or undermine, U.S. obligations under … international humanitarian law. (Emphasis in original.)
Later in the same memo (pp. 84-90), I noted
[T]he far more compelling evidence that the CAT does apply to armed conflicts including (1) aspects of the Convention’s text that explicitly address war or military activities ….; (2) aspects of the negotiating history, including U.S. contributions, that support that understanding, (3) the extensive evidence that the ratifying Executive understood the Convention to apply in armed conflict, and (4) the fact that the Convention’s implementing legislation applies to the U.S. armed forces. The U.S. position [in 2006] thus failed to grapple in any meaningful way with the core requirements of treaty interpretation…. (p. 87) (Emphasis in original.)
The U.S. delegation’s presentation last week rested on the premise that the rules of international human rights law and the law of armed conflict both absolutely prohibit torture and cruel treatment. As Sarah Cleveland writes in a post coming later on Just Security, the administration “articulated a … substantially narrowed vision of the relationship between IHL and the CAT, in which the terms of the CAT presumptively apply except in the quite specific case of a conflict between IHL and a particular CAT provision.”(Emphasis in original.) NSC’s Meehan explained “Although the more specialized laws of war—which contain parallel categorical bans on torture and other inhumane treatment in situations of armed conflict—take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application.”
But again, this is one of those cases in which the U.S. delegation apparently said no more than it needed to say and did not answer questions not yet presented. As between the CAT and the law of armed conflict, my January 2013 memorandum made clear that “the CAT is best understood as the later-in-time convention, of both greater specificity with respect to a State’s obligations not to torture and of general application.”
In sum, we should not minimize what happened in Geneva last week. America’s unequivocal yes to the comprehensive ban on torture and cruel treatment marked a major and positive change in the U.S. position. Returning to the position first taken in 1990 by Legal Adviser Abe Sofaer, the U.S. acknowledged an absolute legal prohibition against torture and cruel, inhuman, or degrading treatment that applies anywhere, anytime. The Obama administration rejected unequivocally the doctrines of strict territoriality and total displacement of human rights law by humanitarian law. While a test of “control as a government authority” was adopted for extraterritorial application of that treaty, it remains to be seen what space, if any, remains between the geographic coverage of that test and one of “effective control.”
More important, as noted above, this is the first time in more than two decades that the United States moved away from a strict territorial reading of a human rights treaty. Now that the U.S. has finally joined the rest of the world in acknowledging that some human rights treaty obligations must extend beyond our shores, we can finally start to engage with our treaty partners to seek consensus on exactly what the most legally correct interpretation of that geographic scope should be.