Obama Administration Reverses Bush Policy, Says U.S. Torture Ban Applies Abroad

As Charlie Savage of the New York Times reported last month, President Obama’s legal team was debating whether to reaffirm a Bush administration position that the United Nations Convention Against Torture imposes no legal obligation on the U.S. to bar cruelty outside its borders.

The debate is over. And the good guys won — this time. See the following statement issued by the White House this morning, even as State Department officials were answering questions about the administration’s position in Geneva before the United Nations Committee Against Torture. Emphasis added.

Statement by NSC Spokesperson Bernadette Meehan on the U.S. Presentation to the Committee Against Torture

Today in Geneva, the United States began its periodic presentation to the Committee Against Torture, a body of independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by States that are party to it. The Administration embraces the universal values enshrined in the Convention Against Torture—which the United States signed in 1988 and ratified in 1994—and affirms the U.S. government’s deep commitment to meeting its obligations under the Convention.

During the course of the two-day review, the U.S. delegation will underscore that all 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.

In preparation for this week’s presentation, senior lawyers from across the U.S. government have considered questions posed by the Committee about important U.S. legal positions with respect to the Convention, and the delegation will be articulating a number of changes and clarifications agreed upon in the course of that review process:

· In 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. The delegation in Geneva will make clear, consistent with the text, negotiating history, and the Senate ratification process, that U.S. obligations under Article 16 (as well as under other provisions of the Convention with the same jurisdictional language) apply in places outside the United States that the U.S. government controls as a governmental authority. The delegation will also make clear our conclusion that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to U.S.-registered ships and aircraft.

· The U.S. delegation will affirm the United States’ obligation to abide by the exclusionary rule set forth in Article 15 of the Convention in the Periodic Review Board process for law of war detainees at Guantanamo, as well as in military commissions.

· The delegation will also clarify the United States’ view that a time of war does not suspend the operation of the Convention, which continues to apply even when a State is engaged in armed conflict. 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.

Also see: Opening Statement Mary E. McLeod Acting Legal Adviser U.S. Department of State and Assistant Secretary Malinowski: Torture is forbidden in all places, at all times, with no exceptions.

Despite concerns from some civil libertarians that the statements today still allowed for some exclusions — such as U.S. government sites in other countries — Yale Law Professor Harold Hongju Koh praised the move.

Koh, fairly fresh off his stint as legal adviser to the State Department, went public last week with a plea to Obama to unequivocally say “yes” to the torture ban.

He issued the following statement to the Intercept today:

When asked if the torture treaty applies without exception, the Bush Administration answered “no.” The Obama Administration said, “There 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.” That unequivocal statement explicitly changed the USG’s official position, and took a significant step forward in recognizing application of the treaty extraterritorially and in armed conflict. In so doing, they placed critical distance between them and the Bush administration.

Updated at 3:13 p.m. ET to add response from Koh.

Updated at 9:46 a.m. ET to add link to additional statements.

Photo of U.N. Committee Against Torture Chairman Claudio Grossman: Evan Schneider/U.N.