Dems urge Obama to reject Bush-era torture view

Under the United Nations Convention Against Torture, countries are prohibited from exercising “cruel, inhuman or degrading treatment” of anyone, including suspected terrorists.

The Bush administration in 2005 interpreted that treaty to allow for cruel treatment that it argued fell short of torture at secret rendition prisons abroad. At the time, Obama as a senator protested the Bush administration’s interpretation, but his administration has never taken a position on the treaty itself.

Obama’s legal team is considering technical changes that fall short of the Bush administration’s position that the treaty imposes no legal obligation on the United States to prohibit cruelty outside its borders but still raises questions among human rights critics.

The administration will send a delegation to Geneva in November to appear before the Committee Against Torture, a United Nations panel that monitors adherence to the treaty.

Bernadette Meehan, a spokeswoman for the National Security Council, told the Washington Examiner that Obama’s opposition on torture and cruel interrogations anywhere in the world is clear and “rock solid.”

She said Obama’s lawyers are considering “technical and interpretive questions” the Committee Against Torture raised with the administration.

She did not elaborate on the details of the questions or say whether they involve how the United Nations treaty applies to U.S.-sponsored activity overseas or interrogations that take place after U.S. authorities deliver the suspects to another country for interrogations by that country’s personnel.

“The questions that the Committee Against Torture has raised with us ahead of their November meetings are technical and interpretive ones, and we are giving them a full and thorough inter-agency legal review as we do with all such questions,” she told the Examiner.

“Even as we are looking at the committee’s questions, there is no question that the administration’s position that all U.S. personnel are legally prohibited from torture and cruel treatment is clear, is not limited by geography or circumstances, and is not being reconsidered,” she said.

Rep. Hank Johnson, D-Ga., is leading an effort to urge Obama to stand firm in his opposition to the use of torture or cruelty anywhere in the world. He circulated the letter among his colleagues and gathered 33 other signatures from House Democrats.

The letter expresses support for ensuring the United Nations Convention Against Torture applies overseas, to all persons directly or indirectly under control of any U.S. authorities, “of whichever type, wherever they are located.”

“This standard is consistent with your promise that you made to the American people both while you were a senator and a presidential candidate,” the Democrats wrote, noting that doing so would be consistent with Obama’s actions early in his presidency to ban the use of “torture and cruel, inhuman or degrading treatment during interrogations.”

“We urge your administration to send a strong signal that it opposes torture by taking a clear position on this issue,” they wrote.

Completely reversing Bush’s legal application of the treaty may seem like an easy call for Obama, but in reality it isn’t.

Extraordinary renditions, the practice of the U.S. or another country’s authorities at U.S. direction, taking suspected terrorists to another country for interrogations by that country’s personnel or authorities, has continued during the Obama administration, although far less frequently than during the Bush era.

During the Bush years, U.S. authorities at times also participated in the enhanced interrogations in other countries’ facilities, which many human rights advocates considered torture.

President Clinton also used extraordinary renditions that only involved U.S. personnel handing the suspects over to other countries for interrogations by foreign personnel, what some critics referred to at the time as torture by proxy.

In addition, the strictest interpretation of the treaty prevents any cruel treatment of terrorism suspects on ships in international waters and aircraft in international space.

In June, after capturing the mastermind behind the 2012 attack on the U.S. diplomatic post in Benghazi, U.S. authorities treated him like an enemy combatant and interrogated him aboard the USS New York, an area of legal limbo where U.S. authorities could question him for a prolonged period without having to read him his Miranda rights.

Sen. John McCain, R-Ariz., has regularly expressed concern that questioning terrorism suspects on ships and overseas sites provides for little oversight and scrutiny and could slip into harsher tactics that fall into the cruel category, if not torture.

After it became clear during the Bush administration that Justice Department lawyers had determined that the treaty’s cruelty ban did not apply to non-citizens in U.S. custody abroad, McCain proposed legislation.

His bill barred cruel, inhumane or degrading treatment in all places — at home or abroad. Congress passed it, and President George W. Bush issued a signing statement claiming power as commander in chief to override the statute. After Obama came into office, he ordered strict adherence to that law.

In her statement, Meehan says Obama’s “rock solid” position against torture is consistent with his 2009 executive order ensuring lawful interrogations and Common Article 3 of the 1949 Geneva Convention, and U.S. law.

“… Any individual detained in armed conflict by the United States or within a facility owned, operated, or controlled by the United States, in all circumstances, must be treated humanely and must not be tortured or subjected to cruel, inhuman, or degrading treatment,” she said.

Those signing Johnson’s letter, which notably excluded the top Democrats on the Intelligence, Armed Services and Foreign Affairs panel, pointed out that the Convention Against Torture had the full support of presidents Clinton, George H.W. Bush and Reagan. The letter didn’t mention the extraordinary renditions that took place during the Clinton era.

Abraham Sofaer negotiated the United Nations Convention Against Torture for Reagan and continued as the State Department’s top lawyer under President George H.W. Bush. After the new interpretation by President George W. Bush’s administration in 2005, Sofaer said that neither president intended to restrict enforcement of the cruelty ban to within the U.S. territory.

That kind of territorial restriction, as Sofaer put it, “would fundamentally undermine the treaty’s purpose.”

“The Bush administration’s misguided interpretation isolated us from our allies and put us in the dubious company of abusive and authoritarian governments,” the Democrats said in their letter to Obama.

Johnson sits on both the Armed Services and Judiciary committees. Those signing the letter included several members of the Congressional Black Caucus, including Reps. Keith Ellison, Minn., and Charlie Rangel, New York, and Maxine Waters, Calif.

One Democratic member of the House Intelligence panel also signed: Rep. Adam Schiff of California. Besides Johnson, the letter includes five members of the Judiciary Committee and three members of the Foreign Affairs Committee.

Rep. Chris Van Hollen, D-Md., the ranking member of the Budget Committee who previously served in the Democratic leadership, also signed the letter.