The War On Terrorism Exception To International Treaties
Two months after the United Nations Committee Against Torture released its report criticizing the Bush's Administration's use of torture, the United Nations Human Rights Committee followed up with its own report. The committee criticized the United States for its continued practice of torture and of using extraordinary rendition to send detainees to countries that practice torture. The Committee also criticized the Bush Administration's holding of persons secretly and without charge.
According to the Committee report:
The Committee was concerned by credible and uncontested information that the State party had detained people secretly for months and years on end. It was also concerned that for a period of time the State party had authorized interrogation techniques such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, and 20-hour interrogations. While the Committee welcomed the assurance that those techniques were no longer authorized under the present Army Field Manual, the United States should ensure that the Manual only permitted techniques consistent with the prohibition contained in article 7 of the Covenant, and that those techniques were binding on all agencies of government and others acting for them. The Committee also noted with concern shortcomings in relation to the independence, impartiality and effectiveness of investigations conducted into allegations of torture and cruel, inhuman or degrading treatment or punishment in detention facilities in Guantanamo, Afghanistan, Iraq, and other overseas locations, and into alleged cases of suspicious death in custody in those locations.
The Committee was further concerned that the State party appeared to have adopted a policy to send, or to assist in sending, suspected terrorists to third countries for purposes of detention and interrogation, without the appropriate safeguards to prevent treatment prohibited by the Covenant.
Just as it did when confronted with the report from the UN Committee Against Torture, the Bush Administration defended itself by stating that the Human Rights Committee and the International Covenant on Civil and Political Rights, whose implementation the Committee is charged with monitoring, do not apply to the War on Terror. Specifically the Bush Administration argued that the Covenant only applied when the State Party (United States) committed torture on its own territory. In other words, if the United States tortures a detainee on foreign soil, the Committee does not have jurisdiction. The Bush Administration's position was presented by Matthew Waxman, Principal Deputy Assistant Secretary, Department of State:
The United States believed that the law of armed conflict – international humanitarian law – provided the proper legal framework regarding some of the questions raised by the Committee, Mr. Waxman noted. The United States was aware of the views of members of the Committee regarding the extraterritorial application of the Covenant, including the Committee's General Comment No. 31. The United States, however, had a principled and long-held view that the Covenant applied only to a State party's territory. Article 2, paragraph 1, of the Covenant stated explicitly that States parties were required to respect and ensure the rights in the Covenant to all individuals "within its territory and subject to its jurisdiction". That plain meaning of the treaty language was also confirmed by the Covenant's own negotiating record. It was in light of its principled and longstanding view on the scope of the application of United States obligations under the Covenant, that the United States had not included in its formal response to the Committee's written questions information regarding activities outside of its territory or governed by the law of armed conflict.
The Committee however was not persuaded by the Bush Administration's argument.
Having lost the moral high ground and having butchered the definition of torture, the Bush Administration is now left with making mind-bending arguments that defy common sense. Torture is torture only if it is practiced in the United States. Torture is not torture when practiced by the United States on foreign soil. This is the basis for the existence of Guantanamo Bay and an unknown number of CIA secret prisons across the globe. The Bush Administration has been getting a lot of bad legal advice. The only person who might perhaps have been impressed by these arguments is the late George Orwell.
[Cross posted at Or How I Learned to Stop Worrying]