Belatedly, I want to join the discussion about the extraterritorial application of the Convention Against Torture (CAT), about which Jack commented on Friday, drawing on an article by Charlie Savage earlier in the week. The New York Times opined on the issue on Tuesday in one of its typically misleading, “don’t-confuse-me-with-the-facts” editorials that suggested that the Obama Administration is considering permitting U.S. officials to engage in torture outside the United States, causing Congressional consternation about the Obama Administration’s position. Beth Van Schaak also commented on the issues over at Just Security. The spate of commentary has been spurred by the Administration’s preparations for the U.S. presentation to the Committee Against Torture (CAT Committee) on November 12-13 in Geneva.
At the outset, I should note that, as State Department Legal Adviser, I headed the U.S. delegation that appeared before the CAT Committee on May 5-8, 2006 to explain the U.S. Second Periodic Report. Although it was a privilege to represent the United States, this was not an easy experience, as the U.S. appearance came at the apex of international criticism of U.S. detention and interrogation practices in Iraq, Afghanistan, and Guantanamo, and several years after Abu Ghraib. Then, as now, the U.S. positions articulated in Geneva were the result of arduous interagency discussions, and were not simply the views of the Legal Adviser.
In this post, I will address what the New York Times got wrong; my agreement with Harold Koh that Article 16 of the CAT applies outside U.S. territory in certain situations; and the difficult question of whether U.S. detention operations are governed by the CAT, or international humanitarian law.
What the New York Times Editorial Got Wrong
The New York Times editorial, entitled “Close the Torture Loophole,” claimed that “some military and intelligence lawyers in the administration are pressuring the White House to adopt a Bush-era position that there is no bar against the use of torture by the United States outside its borders.” The editorial goes on to suggest that the Obama administration is concerned about “agreeing to a global ban on torture now” and ends by saying that “President Obama should not consider any legal loophole that might permit an American official to engage in torture or cruelty, no matter where it takes place.”
First, I have to join Ben in venting for a moment about the constant misstatements in Times editorials. Doesn’t the Times editorial board bother to check their facts? Or do they believe it is acceptable to mislead Times readers in the name of making rhetorical points? The issues addressed in Times editorials (including this one) are important ones, and criticisms of the government are often in order. But the Times’ constant inattention to detail simply undermines the credibility of these criticisms. My experience with Washington Post editorials -- at least on international and national security issues -- is that Post editors do as careful interviewing and fact-checking for their editorials as for their news articles. In contrast, the New York Times editorial page seems consistently willing to substitute bombast for accuracy.
So, what’s wrong with the Times editorial? The answer: there already IS a bar against both torture and cruel treatment under both international and domestic law recognized by both the Bush and Obama Administrations. The Bush Administration never took the position that there was no legal bar against torture, and the Obama Administration is certainly not considering any loophole to that prohibition. Specifically, Article 4 of the CAT requires state parties to criminalize “all” acts of torture. Article 5 requires state parties to criminalize acts of torture committed by its own nationals anywhere in the world; acts committed in territory under its jurisdiction; or acts committed by other nationals who are later present in the U.S. The U.S. has implemented these requirements in the Torture Act, 18 USC 2340 and 2340A. It’s simply wrong for the Times to say that the Bush Administration took the position that the prohibition on torture did not apply outside the United States and that the Obama Administration is considering adopting this position.
Where there has been a controversy is whether the ban on cruel, inhuman, and degrading treatment (CIDT) in Article 16 of the CAT applies outside U.S. territory, an issue I discuss below. But even on the issue of CIDT, there is no extraterritorial “loophole” under U.S. or international law. The Detainee Treatment Act continues to apply; it states that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment.” And, as a matter of international law, Common Article 3 of the Geneva Conventions, which the Supreme Court in the Hamdan decision concluded applies to the U.S. armed conflict with Al Qaida and the Taliban, prohibits cruel treatment as well as “outrages upon personal dignity, in particular humiliating or degrading treatment.” So, whether or not Article 16 applies outside the United States (and I believe it does), there is no “legal loophole” that “permits” U.S. officials to engage in torture or CIDT, anywhere in the world. The Times could have conveyed its concern about the application of Article 16, while still being accurate.
Extraterritorial Application of Article 16 of the CAT
The issue apparently being considered by the Obama Administration is whether to state publicly to the CAT Committee in Geneva next month that the U.S. believes that Article 16 of the CAT (which provides that a state party shall undertake to prevent CIDT “in any territory under its jurisdiction”) applies outside the territory of the United States in certain circumstances. The U.S. had been ambiguous on this issue during its previous appearance before the CAT Committee in 2006; contrary to some reports, the United States did not state that Article 16 does not apply outside the territory of the United States. Instead, the United States stated that the “United States does not accept the concept that “de facto” control equates to territory under its jurisdiction.” This statement left open the possibility that the U.S. does accept that Article 16 applies outside the U.S. in some cases. This was a compromise statement agreed among various agencies, in light of the view of the Justice Department that Article 16 did not apply outside the territory of the United States in any circumstances, and the position of the Department of State that Article 16 applied to territory outside the United States in certain circumstances. In his memorandum on the CAT, Harold Koh quotes from an internal memorandum I had written to the Secretary of State in September 2005 disagreeing with the DoJ view that Article 16 did not apply “outside the United States” and arguing that it should apply in some circumstances, for example, in Guantanamo. Harold’s memo noted that my memo attached a letter from former Legal Adviser Abe Sofaer stating his understanding that Article 16 applied to “any territory, not just the territory of the US” with respect to acts of CIDT “which are within our legal capacity to prevent.”
In his CAT memo (which expressed his personal recommendations for the U.S. CAT presentation in 2014, not the official opinion of the Legal Adviser’s office), Harold recommended that the United States “reject any legal position claiming a categorical bar against the Convention’s extraterritorial scope” and that the U.S. acknowledge that Article 16 applies in situations where a state “exercises sufficient effective control: i.e., where it has relevant effective legal or regulatory authority to do so.”
As stated in my September 2005 memorandum to the Secretary, I agree with Harold that Article 16 applies outside the territory of the United States in those circumstances where the United States exercises “jurisdiction.” I anticipate that the U.S. delegation will acknowledge to the CAT Committee next month that Article 16 applies outside U.S. territory in some cases, and I recommend that the U.S. delegation do so. The more difficult question -- and I suspect that this is the issue being debated inside the Administration -- is whether the U.S. will be able to define precisely which situations outside the United States constitute “under U.S. jurisdiction” for purposes of Article 16. Will de facto control (which the U.S. rejected in 2005) be sufficient? In what circumstances would the U.S. have “effective legal or regulatory authority” (the standard that Harold has suggested, and which is more akin to de jure control) under U.S. domestic and international law? In addressing these questions, the Administration will have to take into account the positions that it has taken in litigation in U.S. courts, including what legal rights are enjoyed by detainees in Afghanistan.
Application in Situations of Armed Conflict/Lex Specialis
Besides considering what to say about the application of Article 16 outside the United States, Obama Administration officials are likely also grappling with the difficult issue of whether and how the CAT applies to the activities of the U.S. military in armed conflict. At the time of its Second Periodic Report in 2006, the United States was criticized for stating that “U.S. detention operations in Guantanamo, Iraq, and Afghanistan were governed by the law of armed conflict, which provided the lex specialis applicable to those operations.” Some critics attacked me personally, suggesting that, as head of the U.S. delegation, I had invented the doctrine of lex specialis.
To be clear, the position of the United States was never that the CAT did not apply at all DURING armed conflicts (of course, it continues to apply), but rather that military operations, including detention operations, were governed by the specific rules in the laws of war, not human rights law. Moreover, it is important to emphasize that both IHL and HRL prohibit torture and CIDT, so the substantive standards are the same under international law. As I noted above, Common Article 3 of the Geneva Conventions prohibits torture and cruel treatment as well as “outrages upon personal dignity, in particular humiliating or degrading treatment.” So, the issue is not whether the substantive law is different, but which body of law governs.
In his memo about the CAT, Harold Koh concludes that, as between the CAT and the law of armed conflict, “the CAT is best understood as the later-in-time convention, of both greater specificity with respect to a State’s obligations not to torture and of general application.” I am not sure that the Departments of Defense and Justice would agree with the conclusion that the CAT trumps the laws of war, and I suspect that this is one of the issues being internally debated inside the Obama Administration as it prepares for its CAT presentation. Separately, Harold Koh states in his memo on the extraterritorial application of the ICCPR (p. 53) that “Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict outside a nation’s territory are found, not in the broader corpus of international human rights law, but in the more specific rules (lex specialis) of international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as the customary international law of armed conflict.” (Emphasis added.) And in footnote 8 of his ICCPR memo, Harold states that “U.S. military operations in the conduct of the armed conflict with al Qaida (and associated forces) in Afghanistan and elsewhere are properly governed by relevant standards of international humanitarian law, not international human rights law.” (Emphasis added.)
Of course, if the CAT also applies to U.S. military operations, then the U.S. would be required to report to the CAT Committee regarding whether these operations comply with the CAT. At the time of the U.S. Second Periodic Report in 2005, when the U.S. was still in the midst of active military operations in Iraq and Afghanistan, the Department of Defense did not believe it was legally required, or appropriate, to report on U.S. military operations to the CAT Committee. Instead, DoD provided access to detainees to the ICRC, and discussed with the ICRC whether U.S. detention policies complied with the Geneva Conventions. In 2005, the State Department reached a compromise with DoD, where the U.S. reported extensively on U.S. detention operations in an annex to the Second Periodic Report, while still maintaining that these operations were governed by the law of armed conflict.
In its most recent written report, submitted in August 2013, the U.S. avoided the issue of whether the CAT governs U.S. military activities, stating as follows (in para 6): “In the spirit of cooperation, the United States has provided detailed and thorough answers to the questions posed by the Committee, whether or not the questions or information provided in response to them bear directly on obligations arising under the Convention.” (Emphasis added.)
At its presentation in Geneva next month, I assume that the U.S. delegation will be asked directly whether the CAT applies to U.S. military activities. My guess is that the U.S. will not say that it does. Instead, if the U.S. answers directly, the U.S. delegation is more likely to say that U.S. military operations (including detention operations) continue to be governed by international humanitarian law, but that the CAT “complements” and “informs” these obligations.