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Michael Ratner of the Centre for Constitutional Rights rejects the idea that the convention on torture exempts the US outside its borders

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore. And welcome to this edition of the Michael Ratner report.

Back in 2009, upon taking office, President Obama issued an executive order that forbade cruel interrogations and practices of torture by U.S. officials anywhere, including the CIA. In 2005, standing up against the Bush administration, Mr. Obama (then Senator Obama) supported legislation that would make it clear that American officials were legally barred from using cruelty anywhere in the world. But now, according to a New York Times article published on October 18, the Obama administration is considering how it interprets the convention on torture. It reported that the Obama administration is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligations on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations of the conditions of anonymity.

Now joining us to discuss all of this is our regular contributor Michael Ratner. Michael is the president emeritus at the Center for Constitutional Rights in New York.

Thank you so much for joining us, Michael.

RATNER: Good to be with The Real News and with you, Sharmini.

PERIES: Michael, why is this reversal by President Obama?

RATNER: Well, it’s not a reversal yet. But even the discussion is sort of extraordinary to me. I mean, the Center for Constitutional Rights, I and others, have spent our last decade, really, fighting against U.S.-sanctioned torture overseas, U.S. torture overseas, whether at Guantanamo, Abu Ghraib, waterboarding, etc., and all of a sudden to see that the Obama administration is debating the question of whether they’re going to reopen the door for torture outside the United States–not torture inside, but torture outside. We first got wind of this with an article in The New York Times by the reporter, Charlie Savage, who said there’s a debate within the administration right now on whether the convention on torture–and that’s a treaty the U.S. signed almost 20 years ago which prohibits the use of torture or what is called the lesser form of torture, cruel, inhuman, and degrading treatment, anywhere in the world, in the United States or outside United States. And that debate is going on in part because the U.S. is about to have appear before the UN for a periodic review of its compliance with the treaty the US has signed.

Now, it should be said that the Bush administration, as it engaged in torture in what it determined or it claimed was a lesser form of torture, cruel and inhuman and degrading treatment, did reinterpret that treaty to state that the treaty’s prohibition on torture–or what I call the torture lite–did not apply overseas. In other words, torture lite can be employed outside the country. That interpretation was obviously very important to the Bush administration and to the military and intelligence agencies. That’s what allowed them to justify all kinds of torture–from what I call the Rumsfeld techniques at Guantanamo, you know, restraining chairs, isolation, sleep deprivation, sexual harassment, etc., all the way up to including waterboarding. They did it by claiming what they were doing was not torture but was this lesser form of torture. And then they said, well, that lesser form of torture is not prohibited under the torture convention.

That was one strand of what allowed CIA torturers under Bush to get away with torture. The legal Golden Shield, as we called it then, that Obama then refused in addition to go after them, claiming, well, they had a legal defense–the Bush administration claimed that they could torture overseas. And as we now know, there’ve been no prosecutions under the Obama administration for the open and notorious use of torture overseas, which, of course, is the fatal–really the fatal flaw; whatever we think of Obama’s prohibitions, etc., on torture, the fatal flaw is he has allowed torturers to get away with exactly that, torture.

As you said, Sharmini, when Obama took office, he did ban torture and cruel and inhuman and degrading treatment anywhere in the world, including overseas. But, of course, it’s just his ban. It can be overruled even by his own administration. It can be overruled by the next administration for sure.

Now, they didn’t get rid of every form of torture–a bit of an aside, but I wanted to make that clear, that the Obama administration still allows sleep deprivation, isolation, and sensory deprivation, which taken together could certainly constitute torture.

So the question really is: what is going on now? Why is this issue arising now? What does it mean if the Obama administration interprets the treaty to allow what I call torture lite overseas–really, torture? As I said, it’s going on now because the U.S. has to appear before the UN and give its interpretation of the treaty.

But it’s also going on for a number of other reasons. First of all, I think once you allow torture lite overseas, essentially saying the treaty doesn’t cover that, then you can do what the Bush administration did and say that something like waterboarding is truly torture; it’s only cruel and inhuman and degrading treatment, and therefore it’s not banned overseas. So that’s one thing that this change would allow.

Secondly, the effort indicates that they may want to use torture again, whether in this administration or in the future. But it certainly indicates that the people within the intelligence community, the military, etc., want to keep this as an option, and therefore they don’t want the treaty interpreted in a way that would prohibit the use of torture overseas. In other words, they want that torture option open.

Third–and this to me is very important–think about what’s going on now. As I did on my report last week, I talked about the trial going on around Guantanamo forced feeding and the claim that the fashion in which that is being done amounts to torture. The administration is worried about that trial and therefore may be saying, well, that’s going on overseas, quote, Guantanamo being overseas, end quote, and they want to make sure that they’re not going to be liable under the torture convention for that. That’s a third reason.

Finally, this interpretation that the Obama administration is considering may also help all of those torturers from the Bush ministration sleep better. Now, it’s not that I think it’s likely they’re going to be prosecuted in the next few years, but look at places like Argentina, where 20, 30 years later torturers are being brought to justice. A legal interpretation by an Obama administration confirming what the Bush administration outrageously said, really outrageously, in the famous and the clear words of the convention, might allow them to sleep a little bit better.

So in the end what we’re going to have is an inexcusable outrage if this goes off and happens. It’s a backing off by the Obama administration on the clear meaning of the treaty. A country can’t torture at home and it can’t torture abroad. And we need to make sure that that continues to be a prohibition. So what we see is another effort to protect U.S. torturers in the past, U.S. torturers in the present, and U.S. torturers who might torture in the future. And what we have, in summary, is a president with feet of clay.

PERIES: Michael, how does this kind of positioning compare with other states who are signatory to the convention?

RATNER: No one in their right mind would assert that the Convention against Torture’s prohibition don’t apply outside their own country. It applies to any place where those countries have the ability and jurisdiction or a prison, etc. It’s an unheard-of, really, interpretation of the treaty. It’s the U.S. being exceptional in ways that I thought the U.S. have been exceptional for a long time, which is ignoring the fundamental precepts in human rights of international law.

PERIES: Thank you for joining us once again, Michael.

RATNER: Thank you for having me, Sharmini.

PERIES: Thank you for joining us The Real News Network.


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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.