The New York Times reports that Obama's legal group is considering whether the administration should retreat from his earlier view and adopt a position very much like that of former president George W. Bush — that the treaty does not impose legal obligations to bar torture outside the borders of the U.S. The U.S. will send a delegation to Geneva next month to appear before a UN panel that monitors compliance with the UN treaty.
The Times claims that State Department lawyers are in favor of jettisoning the Bush interpretation. Obama had already issued an executive order in 2009 that forbade torture anywhere in the world and so this position would not involve any change in policy. Military and intelligence lawyers, however, oppose accepting the implication that the treaty creates any legal obligations on any U.S. actions outside the U.S. These lawyers worry that detainees abroad could sue the US for being subject to torture. Courts have repeatedly thrown out such lawsuits.
Bernadette Meehan, a National Security Council spokesperson, claims that Obama's views on the issue were quite clear and distinct from how the UN treaty was to be interpreted:
“We are considering that question, and other questions posed by the committee, carefully as we prepare for the presentation in November. But there is no question that torture and cruel treatment in armed conflict are clearly and categorically prohibited in all places.”If the Bush-era narrow interpretation of US obligations is again adopted, this would clear the way again for torture to be adopted by the U.S. abroad.
The US Senate Intelligence Committee recently completed a classified 6,000-page report into the CIA's detention and interrogation from September 2001 to 2006. However, the report did not consider the role of George W. Bush or his top officials in approving abuses, including torture. The public will only be able to see a partly-redacted, 500-page summary of the report once the classification process is completed. The Committee allowed the Obama administration to withhold about 9,000 documents based upon executive privilege.
A number of foreign leaders and NGOs have pressed for charges to be made against Bush and former members of his administration for approving abuse of detainees during the period studied by the Senate Committee. The only official to go to jail over the torture issue was John Kiriakou, a whistleblower who was one of the first to confirm the existence of the US waterboarding program. He was sentenced to two-and-a-half years in jail for revealing the name of an uncercover agent.
The present director of the Central Intelligence Agency John Brennan was also an important CIA official during the period when it was carrying out its policies of abuse, and he defended policies like waterboarding. Obama has held up release of the redacted summary report of the Senate Intelligence Committee. Brennan and his cleanup crew are no doubt busy redacting any mud in the report that might soil the pristine reputation of the CIA. Obama refused to lay charges against any Bush era officials involved in torture. Indeed, after two tries he was able to have one appointed as head of the CIA.
As the president so eloquently put the issue:
"This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."Of course exceptions can be made for whistleblowers.