Obama White House Considers Adopting Bush Era Policy Allowing Torture Overseas

Posted Oct. 29, 2014

MP3 Interview with Kathy Roberts, legal director with the Center for Justice and Accountability, conducted by Melinda Tuhus


When he was a candidate for the presidency, then-U.S. Sen. Barack Obama campaigned on a platform of ending U.S. torture that had been endorsed and practiced by George W. Bush's administration. After he was elected and took office Obama issued an executive order in 2009 that prohibited cruel interrogations anywhere – and made it harder for future presidents to return to torture. An Oct. 19 article in the New York Times, titled "Obama Could Reaffirm a Bush-Era Reading of a Treaty on Torture," cited a current debate within the Obama administration over whether to adopt the Bush administration’s interpretation that the “The Convention Against Torture" – which the U.S. has ratified – only prohibits cruel, inhuman or degrading treatment or punishment within the territory of the United States. The White House debate comes as the Obama administration must clarify its position on the torture treaty in November, when a U.S. delegation will travel to Geneva to issue a report to the Committee Against Torture, a U.N. panel that monitors compliance with the treaty.

In a disturbing case of what some observers describe as "blowback," a British hostage held by the ISIS terrorist group reported in a recently released video message that prisoners were waterboarded as punishment for their attempts to escape captivity. Other press reports maintain that ISIS prisoners have been subjected to various other forms of torture before their executions.

The Center for Justice and Accountability is a San Francisco-based human rights group dedicated to deterring torture and other human rights abuses around the world, while advancing the rights of survivors to seek truth, justice and accountability. Between The Lines' Melinda Tuhus spoke with the center's legal director, Kathy Roberts, who discusses her concern about a current debate on torture within the Obama administration that could revive the Bush administration interpretation that the U.S. government had the option of engaging in cruel, inhuman or degrading treatment of prisoners it holds abroad.

KATHY ROBERTS: President Obama has made clear that torture and cruel treatment are prohibited by executive order. What the Committee Against Torture has asked him to clarify is, what is the territorial reach of the Convention Against Torture? And, of course, any kind of traditional legal scholarship would say that the CAT prohibits torture everywhere; in fact, it just codifies an underlying international norm that pre-existed the treaty. It's always been illegal – or almost always been illegal – to commit torture or cruel treatment anywhere. What's concerning about this report that came out last week is that there are lawyers in the administration who are pushing for something more like the Bush-era legalistic, if we could call it, interpretation of the treaty, which is to try to find loopholes that are law-free zones within the whole network of treaties. It's not legitimate, logically or morally, or according to principles of international law and interpretation, and it's very dangerous.

BETWEEN THE LINES: Can you explain what the Committee Against Torture is?

KATHY ROBERTS: Under the Convention Against Torture, there's a treaty monitoring body called the Committee Against Torture. Many of the human rights treaties – multilateral human rights treaties have a kind of committee that oversees the reports from states and can ask them questions and makes determinations on how to understand the treaty as time goes by. So the U.S. will be sending a delegation to report on the U.S. compliance with the Convention Against Torture next month. I'm not sure of the exact time but it should be between November 3rd and the end of November. So they have sent questions asking what the U.S. position is on a number of issues where it remains a bit unclear, so that's their job, to try to determine if the U.S. is still in compliance – or in compliance – and to encourage the U.S. – or whichever country is before it – to comply with the treaty.

BETWEEN THE LINES: My understanding is that lawyers at the State Dept want torture to be illegal everywhere, but that within the Defense Department and the CIA, I think, they're talking about moving back to the Bush-era definition. Can you speak to that, and I wonder how that would play out in the administration.

KATHY ROBERTS: That's my understanding, too, and of course it's always a little difficult to draw too many conclusions from a report of a report of lawyers in different agencies holding different positions, but it's fairly clear that the State Department, the Office of Legal Adviser, issued exhaustive opinions on this point, that international law prohibits torture and the U.S. is committed to not torturing and not creating zones in which cruel treatment is allowed. The idea that you can send refugees who are likely to be tortured straight into countries where they're likely to be tortured, it's not okay just because they're not in U.S. territory. Those sorts of things are fairly standard definitions under the treaty and obligations under the treaty. I think there are apparently lawyers in the military or in the intelligence services or perhaps both who maybe made made nervous about the idea that the U.S. has legal obligations outside of the U.S. on sort of policy commitments, that we'd like to reserve the ability to change our minds. I think this is obviously a bit misguided, since the U.S. doesn't have the option to make torture legal somewhere, but it sends a message to other countries and armed groups and actors around the world that the U.S. might consider this prohibition optional, which I think is a lot more dangerous ... I would assume there are people in the Department of Defense and the CIA who are also concerned about the dangers raised by that.

BETWEEN THE LINES: Kathy Roberts, your organization, the Center for Justice and Accountability, sent a letter last week to Samantha Power, U.S. ambassador to the United Nations, and other officials about this issue. What was the focus of your letter?

KATHY ROBERTS: We sent the letter primarily to express our concern and to urge her and these other officials to maintain the only legally available position, which is that torture and cruel treatment are illegal everywhere.

BETWEEN THE LINES: Do you expect to get some kind of answer, or do you think you'll just be ignored?

KATHY ROBERTS: I don't expect to get an answer, but I also don't expect to be ignored. We do have a democracy and our government should listen to its constituents, and I believe that the people receiving this letter will be aware –they'll at least be put on notice that the public is concerned, that we're concerned. I think we're not the only ones engaging these government officials now. I'm sure they're engaging each other quite vigorously.

CJA is an international human rights organization dedicated to deterring torture and other human rights abuses around the world and advancing the rights of survivals to seek truth, justice and redress, mainly through litigation to hold perpetrators individually accountable and by developing human rights law.

For more information on the Center for Justice and Accountability, visit cja.org.

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