Obama’s legal team debates torture treaty stance

WASHINGTON — When the George W. Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to CIA and military prisons overseas, President Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.

Obama supported legislation to make it clear that U.S. 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, 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 U.N. panel that monitors compliance with the treaty. That presentation will be the first during Obama’s presidency.

State Department lawyers are said to be pushing to officially abandon the Bushera interpretation. Doing so would require no policy changes because 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 U.S. 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 spokesman, said Obama’s opposition to torture and cruel interrogations anywhere in the world was clear, separate from the legal question of whether the U.N. 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,” Meehan said. “But there is no question that torture and cruel treatment in armed conflict are clearly and categorically prohibited in all places.”

In Obama’s first term, his top State Department lawyer, Harold Koh, began a push to reverse official government interpretations that two global-rights treaties — the torture convention and a Bill of Rights-style accord — im- posed no obligations on U.S. officials abroad.

Both treaties contain phrases that make it ambiguous whether they apply to U.S.-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.”

Koh argued that both treaties protected prisoners in U.S. 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 policymakers to claim” that the torture treaty has no application abroad.