November 01, 2014

ABA urges administration to apply torture treaty extraterritorially

ABA President William C. Hubbard urged the Obama administration Nov. 7 to formally affirm that the administration interprets the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as applying extraterritorially to prisoners within the custody of or under the physical control of the United States.

In a letter to President Obama, Hubbard noted that, over the past decade, revelations of abuses by U.S. personnel of detained terrorism suspects overseas and the lack of transparency and accountability over what occurred “have continued to dismay the American public and severely damage our nation’s reputation as a leader in promoting human rights and the international rule of law.”

Hubbard acknowledged a very important step the president took in 2009 when he issued Executive Order 13491 revoking all executive directives, orders and regulations that permitted abusive interrogations of detainees, ordering the closure of the Central Intelligence Agency’s “black sites,” and establishing uniform interrogation standards.

The United States ratified CAT in 1994 and, as one of 156 state parties, is required to submit periodic reports to the Committee against Torture (CAT Committee), which consists of 10 independent human rights experts who monitor implementation of the CAT by state parties.

Hubbard urged the administration to include an “explicit and unequivocal statement” in its periodic report to the CAT Committee acknowledging the extraterritorial application of Article 16 of the convention. Article 1 of the convention defines torture, and Article 16 requires each state party to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1 when the acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Hubbard said such a statement is necessary to affirm to the international community that, “whatever previous statements may have been made by U.S. officials to the contrary, our nation is committed to ensuring that individuals within the custody or control of the United States will not be subject to torture or cruel, inhuman or degrading treatment or punishment no matter where detained.”

The ABA president quoted former State Department Legal Advisor Harold Koh, who last year succinctly summarized in a lengthy memorandum on the geographic scope of CAT why the United States needs to acknowledge publicly the basic principles of humane conduct, unconstrained by national borders.

When U.S. State Department officials appeared Nov. 12 and 13 before the CAT Committee in Geneva, they emphasized that the United States believes that “torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.”

However, when explaining U.S. obligations under Article 16 (as well as under other provisions of the convention with the same jurisdictional language), State Department officials and later the White House, in a Nov. 12 statement, said that the obligations apply in places “outside the United States that the U.S. government controls as a governmental authority.” The statement, however, did not clearly define “governmental authority” and leaves open the question of treatment of prisoners currently held or held in the future at detention facilities operated by the United States outside its borders. 

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