October 20, 2014
The New York Times reported on Sunday: “Obama Could Reaffirm a Bush-Era Reading of a Treaty on Torture.”
MARCY WHEELER, emptywheel at gmail.com, @emptywheel
Wheeler writes widely about the legal aspects of the “war on terror” and its effects on civil liberties. She blogs at emptywheel.net and writes the “Right to Know” column for ExposeFacts.org. She just wrote: “For some reason, the NYT decided to bury this article from Charlie Savage on page A21. It explains that the Obama administration is debating internally whether to overturn Obama’s ban against cruelty (which is also mandated by the Detainee Treatment Act). Some intelligence lawyers, apparently, believe Obama’s torture ban and the DTA are too limiting. [From the article:]
‘It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity. …
‘State Department lawyers are said to be pushing to officially abandon the Bush-era interpretation. Doing so would require no policy changes, since Mr. Obama issued an executive order in 2009 that forbade cruel interrogations anywhere and made it harder for a future administration to return to torture.
‘But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.’
“There were remarkable amounts of denial in response to this, from people who seem totally unaware of the kind of practices — that appear to include isolation, sleep deprivation, food manipulation, and other forms of coercion — currently used by High Value Interrogation Group [HIG], the inter-agency group used to interrogate terrorist suspects. And this post from David Luban, which lays out some of the loopholes the government might be using to engage in abuse, misses a few.
“We know, for example, that there are two OLC [Office of Legal Counsel] opinions that say Presidents don’t have to change the text of Executive Orders they choose to ignore, meaning Obama could ignore his torture ban ‘legally.’ There’s also the Appendix M OLC opinion that has approved whatever DOD wants to sneak into the sometimes classified appendix in advance. …”
MARJORIE COHN, firstname.lastname@example.org
Cohn, a professor of human rights at Thomas Jefferson School of Law and past president of the National Lawyers Guild. She is editor of The United States and Torture: Interrogation, Incarceration and Abuse.
She said today: “The Convention Against Torture, which the U.S. has ratified, also bans cruel, inhuman or degrading treatment or punishment. Yet President Obama is apparently considering whether to adopt the Bush administration’s erroneous claim that the torture treaty only prohibits such treatment within the United States. This would be a cynical attempt to limit liability of U.S. officials for their cruel treatment of people abroad.”
Also, see, from OpenTheGovernment.org, the recently released report: “The Impact of Executive Branch Secrecy On The United States’ Compliance With The Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment.” [PDF]