October 19, 2014
WASHINGTON — When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on "cruel, inhuman or degrading treatment" as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.
Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute "acknowledges and confirms existing obligations" under the treaty, the United Nations Convention Against Torture.
But the Obama administration has never officially declared its position on the treaty, and now, President Obama’s legal team is debating whether to back away from his earlier view. 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.
The administration must decide on its stance on the treaty by next month, when it sends a delegation to Geneva to appear before the Committee Against Torture, a United Nations panel that monitors compliance with the treaty. That presentation will be the first during Mr. Obama’s presidency.
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.
The internal debate is said to have been catalyzed by a memo that the State Department circulated within an interagency lawyers’ group several weeks ago. On Wednesday, lawyers from the State Department, the Pentagon, the intelligence community and the National Security Council met at the White House to discuss the matter, but reached no consensus.
Bernadette Meehan, a National Security Council spokeswoman, said Mr. Obama’s opposition to torture and cruel interrogations anywhere in the world was clear, separate from the legal question of whether the United Nations treaty applies to American behavior overseas.
"We are considering that question, and other questions posed by the committee, carefully as we prepare for the presentation in November," Ms. Meehan said. "But there is no question that torture and cruel treatment in armed conflict are clearly and categorically prohibited in all places."
In Mr. Obama’s first term, his top State Department lawyer, Harold H. Koh, began a push to reverse official government interpretations that two global rights treaties — the torture convention and a Bill of Rights-style accord — imposed no obligations on American officials abroad.
Both treaties contain phrases that make it ambiguous whether they apply to American-run prisons on foreign territory. For example, the provision barring cruelty that falls short of torture applies to a state’s conduct "in any territory under its jurisdiction."
Mr. Koh argued that both treaties protected prisoners in American custody or control anywhere. In a 90-page memo he signed in 2013, before leaving the State Department to return to teaching at Yale Law School, he declared, "In my legal opinion, it is not legally available to policy makers to claim" that the torture treaty has no application abroad.
In March, the Obama administration rejected Mr. Koh’s view about the Bill of Rights-style accord, telling the United Nations that the United States still believed that it applied only on domestic soil. That treaty, however, raised more complications than the torture treaty does.
The torture treaty debate traces back to the January 2005 confirmation hearing for Alberto R. Gonzales, then White House counsel, to become attorney general. He faced questions about torture because the previous year, amid the Abu Ghraib scandal, someone had leaked a Justice Department memo addressed to him that narrowly interpreted a statute banning torture.
The memo’s focus on determining exactly what constituted torture was puzzling because the treaty made cruelty short of torture illegal, too. The mystery was solved when Mr. Gonzales revealed that Justice Department lawyers had concluded that the treaty’s cruelty ban did not protect noncitizens in American custody abroad.
That disclosure prompted Senator John McCain, Republican of Arizona, to propose legislation prohibiting cruel, inhuman or degrading treatment anywhere. After Congress enacted it, President George W. Bush issued a signing statement claiming that his powers as commander in chief overrode the statute, leaving a cloud over the law until Mr. Obama ordered strict compliance with it.
The theory that the treaty’s cruelty provision applied only domestically rested on a Senate reservation interpreting the provision as referring to the same cruel and unusual treatment prohibited by the Constitution. Since the Constitution does not apply to noncitizens abroad, the Bush team reasoned, neither did the treaty provision.
But Abraham D. Sofaer, a former top State Department lawyer who negotiated the treaty for President Ronald Reagan and presented it to the Senate for the first President George Bush, said the intent of the reservation was to ensure uniform standards, not to limit the treaty’s geographic applicability.
"What the attorney general said about our liability abroad, it was all wrong, and we need to wash it away," Mr. Sofaer said last week. "We shouldn’t have done it, and we need to send a signal to the world that we mean it, we should not have done this, we misinterpreted the convention. This is a really important worldwide ban that we need to get behind again."