In Defense of the Memoranda: A Reply to Ben Wittes

[Editor’s Note: Just Security is holding a “mini forum” on the extraterritorial application of human rights treaties in light of the release of two State Department memos and the US appearance before the UN Human Rights Committee the week of March 10, 2014. This series includes posts from Jennifer DaskalDaphne EviatarRyan GoodmanJonathan HorowitzMarko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]

This forum—occasioned by the release of two State Department memoranda on the extraterritorial reach of human rights obligations and coverage in the New York Times by Charlie Savage—has generated a rich and varied discussion of non-refoulement (Jonathan Hororwitz); privacy rights and surveillance (Jennifer Daskal and Martin Scheinin); the distinction between obligations to respect and to ensure rights (Marko Milanovic); human rights jurisprudence (Marko Milanovic); the interface with customary international law (Ryan Goodman); and policy considerations suggesting that the position previously adopted by the United States before the Human Rights Committee should be abandoned (Daphne Eviatar and me).  Elsewhere, the conversation has touched upon issues of textual interpretation (Peter Margulies) and process (Benjamin Wittes and Peter Margulies).  In this post, I will quickly address some substantive issues that the memoranda reveal as well as Wittes’s claims over at Lawfare that the mere existence of the texts, vice their unorthodox disclosure, represents some sort of process foul. In a subsequent post, I hope to engage other areas of substance more fully.  I should note at the outset that I had not joined the State Department when the first memorandum was issued back in 2010; I was there by the time of the second, but did not see either until they were published online by Savage.  The comments below are drawn from my recent government experience and knowledge of intra- and inter-agency policy negotiation practices.

The categorical U.S. position against extraterritoriality is often described as “long-standing” by its proponents.  However, the memoranda and my own research reveal that not only is this opinion of much more recent vintage, it also came into existence as a relatively cursory and unrefined statement of position.  Indeed, Conrad Harper’s remarks, as noted in the Times article, were not the result of a broad-based inter-agency process of research, deliberation, and consensus-building, but rather seem to have been all but extemporaneous, articulated in response to a question from the Committee at a time when the United States’ policy of interdicting fleeing Haitians on the high seas was under intense legal and political scrutiny.  All the historical research reveals that Harper’s response was the first time that the United States had articulated the strictly territorial position, although—as Margulies notes—the United States was on notice that this was how the Committee was interpreting the Covenant under its supervision.  Under these circumstances, it seems odd and incongruous to give greater deference to Harper’s impromptu statements than to fully researched and well-reasoned legal memoranda that were drafted with an eye toward the presumptive correctness of the prior position.

It also seems clear that the Department of State had not looked at this issue in any great depth prior to the drafting of the leaked memoranda; if it had, no doubt the memoranda would have engaged the prior analysis directly.  In the absence of such a “deep dive,” it seems appropriate that the State Department would, as a matter of due-diligence, initiate a process of establishing a more deliberative and substantiated State Department position on a legal question that was crying out for more rigorous consideration.  Koh makes clear at the outset of the ICCPR memorandum that the Harper position enjoyed a presumption of correctness; this proved to be unsustainable.  As the ICCPR memorandum notes, and notwithstanding any presumption of stare decisis, it is problematic for the United States to continue to advocate for a rigidly territorial interpretation of the treaties in light of

competing evidence from the text, context, object and purpose, travaux, and ratification history of the Covenant, as well as the growing body of jurisprudential, governmental and scholarly interpretation articulating a broader interpretation of the treaty’s territorial scope.

As the memorandum also notes, such a presumption in favor of some version of “stare decisis in executive interpretation does not compel rote repetition of incorrect legal positions” that are no longer legally (or politically) tenable in light of more focused and contemporary research.  The alternative—which would require the suppression of a well-reasoned legal opinion suggesting that a client’s current position is wrong—would arguably be in violation of the Legal Adviser’s ethical obligations to accurately inform his client of the state of the law.

That the Convention Against Torture O(CAT) memorandum was finalized in the waning days of Koh’s tenure as Legal Adviser is of no moment.  Outgoing officials of all stripes regularly issue major position papers during their final days in office.  No doubt some such papers are efforts to “bind” their successors; others are likely the result of prolonged research processes brought to conclusion by an impending departure.  Such magna opera from the Legal Adviser’s office often reflect months of research involving input from dozens of lawyers representing the various offices within “L”, including United Nations Affairs (L/UNA), Political Military Affairs (L/PM), Human Rights and Refugees (L/HRR), and Treaty Affairs (L/T), in consultation with their client offices and bureaus.  Even if these particular memoranda are the work of a smaller L contingent, they still represent the reasoned views of the top State Department lawyer—a human rights expert—in the exercise of his advisory function. Moreover, the 2010 memorandum has presumably been available to other L lawyers for years for their review and critique.  The 2013 CAT memorandum is less momentous from a substantive perspective, since it largely builds on the earlier ICCPR analysis and concerns treaty text that is not as inherently ambiguous. Although Wittes suggests that Koh has generated some sort of minority report that is contrary to the considered views of the rest of the State Department, I imagine that many within the Department share the views expressed within these memoranda.  If dissenters exist, they certainly had opportunities to express their views between the issuance of the 2010 and the 2013 analyses.

Although the Bureau of Democracy, Human Rights, and Labor (“DRL”) has the lead within the State Department on human rights treaty reporting, the positions that the United States takes before treaty bodies such as the Human Rights Committee (and indeed all multilateral fora) are the result of an at times intense and even contentious interagency negotiation process.  The position that finally emerges is often the least common denominator of all the competing and compelling agency equities in play.  The position publicly articulated may not necessarily reflect the views of any one agency and may actually mask deep and persistent internal divisions that re-emerge in subsequent proceedings.  Given the current Executive Branch dynamics, it appears that the State Department lawyers and their allies have yet to convince some of their interagency brethren to fully abandon the prior position, as noted by Savage in his article. No doubt similar memoranda exist within the other agencies.  Because only the State Department research was leaked, we do not have the benefit of the entire inter-agency discussion and debate or of fully understanding the coalitions at work.

Wittes suggests that the memoranda, being contrary to a previously articulated position, will cast aspersions on the Legal Adviser’s office (“L”). I would argue quite the opposite: the memoranda are a credit to L—even if one disagrees on substance, they demonstrate an impressive degree of analytical rigor and a stereoscopic treatment of the subject matter (involving a close analysis of treaty text across multiple and equally authentic languages, searching forays into the travaux préparatoires, and a comprehensive survey of contemporary jurisprudence emerging from multiple treaty bodies and human rights courts).  The 2010 memorandum’s research and analysis on the ICCPR ratification process in particular is more extensive by far than anything that is available in any other open source.  In short, this is exactly the sort of product one would expect to emerge from L.

Given this background, it should be clear that Wittes’ critique of the memoranda is a bit of a caricature of how interagency policy is made. The propriety and timing of the leak aside—and we should be exceedingly wary of efforts to make policy through leaking even unclassified documents—these memoranda cannot and will not be simply “ignored.” Indeed, given the shift in position between the Combined Second and Third Periodic Report and the Fourth Periodic report that I note in a prior post, it seems that the 2010 memorandum has already had an impact.  At the very least, the U.S. delegation to Geneva this week must be prepared to answer questions about why the legal and policy arguments contained within the memoranda have not fully carried the day internally, as members of the Human Rights Committee will no doubt have read them, as well as the swirl of commentary in their wake, with great interest. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).