WASHINGTON -- A U.S. delegation will be asked by a United Nations panel on Wednesday if it believes the international Convention Against Torture applies to actions conducted by U.S. personnel outside of the nation’s borders.
And nobody knows what the U.S. delegation is going to say.
Wednesday will mark the first U.S. appearance before the Committee Against Torture since the Obama Administration took office in 2008 and swore to put the abuses of the Bush White House’s post-9/11 torture program behind it. Despite its firm stance against the operation, though, lawmakers and advocates are concerned that Wednesday could see the Obama White House nudge open the door for such a program to happen again.
"Right now the Executive Branch is actually debating whether the ban on cruel and inhuman treatment of prisoners applies to US facilities overseas or just inside the United States,” said Sen. Ron Wyden (D-Ore.) in a statement to The Huffington Post. “My view is the ban should apply everywhere, but clearly some people haven’t learned from the mistakes of the past decade.”
The program’s critics say this week’s meeting in Geneva presents an opportunity for the U.S. to mark a clear departure from the abuse and controversies of the Bush years.
"Nine years ago, then-Senator Obama used strong words in support of legislation prohibiting U.S. officials from using torture, saying it is, 'morally reprehensible and has no place in this world,'" said Sen. Mark Udall (D-Colo.). "Now is the time for the president to reaffirm this position and unequivocally state that the U.S. prohibition on torture has no geographic limitations."
But despite the current administration’s condemnation of the CIA’s interrogation program, it’s proven reluctant as of late to take a clear stance on the U.N.’s convention.
It’s an indecisiveness that could dent U.S. credibility just as it tries desperately to close its own dark chapter on torture.
The Obama Administration has spent years picking up the pieces of the post-9/11 operation, the crux of which involved shipping suspected terrorists to secret foreign prisons in order to be subjected to torturous interrogation techniques like waterboarding. The covert CIA program was authorized in part due to the Bush Administration’s secret interpretation of the U.N. Convention Against Torture, which it decided did not apply to U.S. treatment of CIA detainees overseas.
As a senator, Obama countered that interpretation, saying torture should be outlawed everywhere in the world. But The New York Times reported in October that White House lawyers were considering backing away from that condemnation of the Bush-era interpretation. The U.S. will be asked to take an official position on that interpretation in Geneva this week.
The White House’s waffling, though, has torture opponents concerned.
“The fact that the U.S. is apparently even considering equivocating to any degree on the idea that any aspects of the treaty do not apply outside its borders is kind of remarkable,” said Laura Pitter, senior national security researcher for Human Rights Watch. “The object and purpose of the treaty is clearly to prohibit torture worldwide and the failure on the part of the U.S. to make that clear would be a big disappointment. It would send the wrong signal that the U.S. is looking for wiggle room somewhere on something as fundamental and important as the right not to be tortured.”
The White House declined to offer any insight into what the delegation’s position will be.
The Geneva appearance, in many regards, offers a more symbolic opportunity than a legal one. In the aftermath of the CIA’s program -- which essentially ended in 2006 -- Obama signed an executive order barring torture techniques, and international statutes also unequivocally outlaw them. Because there are already laws in place, the U.S. stance has little to do with defining a legal loophole for torture, said John Bellinger, a former lawyer for the Bush Administration’s National Security Council and leader of the last Geneva delegation in 2006.
“They’re blowing the actual issue out of proportion in terms of a tactful legal effect. … It’s not a step that has enormous or even significant legal change, because [torture] is already prohibited as a matter of both domestic law and international law,” said Bellinger. “I do think that it’s important, but it’s not a seismic shift in applying new law.”
The U.S.’s last appearance in 2006 was marred by the then-recently revealed abuses of the CIA’s program, which earned the nation an extremely critical eye from the international panel. At its heart, the upcoming appearance before the U.N. committee is an opportunity to clearly indicate a shift in thinking.
If, that is, the Obama delegation decides to take a stand.
“This is primarily a symbolic opportunity for the United States,” Bellinger said, adding that he urged the Bush Administration to adhere to the provision when he led the delegation in 2006, and he hopes they’ll agree with it this week. “There’s ended up being so little difference on counterterror policies between the Bush and the Obama administration, that this would be one thing that they could do that would be a slight difference.”
The eight years since America’s last U.N. Committee appearance have seen a slew of developments in the toiled saga of the U.S. and torture, many of which the Obama delegation is expected to have to confront in its presentation to the Geneva panel.
Rights groups are particularly interested in how the Obama Administration will justify its decision to grant legal immunity to U.S. personnel involved in the Bush-era program, and whether it will address a 2009 Justice Department investigation into the use of torture, which did not result in any charges.
The U.S. delegation has cited the Justice Department investigation, headed by U.S. Attorney John Durham, as evidence that shows the country takes torture seriously. But advocates say that example won’t fly, considering the investigation’s narrow scope and reports that CIA detainees weren't even interviewed in the course of the investigation.
“I don’t think that this will be acceptable to the [U.N.] committee members,” said Jamil Dakwar, director of the Human Rights Program at the American Civil Liberties Union. “Senior [Bush Administration] officials, who are the architects, who are the ones who sanctioned and approved this program, why were they not at the center of this investigation?”
The timing of the Geneva appearance is underscored by a continuing anticipation over a behemoth 6,300-page Senate report on the CIA’s program, which is currently caught in limbo over a declassification review. The public release of the study’s 500-page executive summary has been held up indefinitely by the White House and its chief spy agency, which are fighting to keep certain information secret.
“Trying to sweep the Senate torture report under the rug or black it out past the point of coherence will make it easier to repeat these mistakes in the future," Wyden added to his statement.
The U.S. delegation will begin its presentation before the U.N. Committee in Geneva on Wednesday. Along with questions on torture, the delegation will be asked to address domestic U.S. incidents of police brutality, domestic confinement techniques and other questions regarding humane treatment.