YouTube video

The Obama administration should be judged by its actions, not by its pious words, says Michael Ratner, president emeritus of the Center for Constitutional Rights

Story Transcript

ANTON WORONCZUK, TRNN PRODUCER: Welcome to The Real News Network. I’m Anton Woronczuk in Baltimore.

We’re joined now by Michael Ratner. He’s the president emeritus of the Center for Constitutional Rights in New York, and he’s also a board member of The Real News Network.

Thanks for joining us, Michael.


WORONCZUK: So, Michael, what do you have for us this week?

RATNER: Well, this week there were the hearings in Geneva on the question of whether the U.S., the United States, was in compliance with the Convention against Torture. That’s a treaty the United States signed a number of years ago, has a number of provisions, and periodically, really every four years, the U.S. is called before the committee in Geneva to see whether it’s complied with that convention against torture.

That convention prohibits torture. It prohibits cruel, inhuman, and degrading treatment, which is a lesser form of torture. It requires that torturers be brought to justice, investigated, and prosecuted if there’s evidence, and other provisions.

And the big question, of course, in this one is, now that the Obama administration is in office, how will it reinterpret or how will it really talk about its compliance with the Convention against Torture after the convention was completely shredded by the Bush administration? Just completely. As we know, there were black sites, there was torture, there was waterboarding. The Obama administration has left the door wide open for torture to occur again, and it’s failed to comply with the Convention against Torture.

Those hearings are completed, and I can just highlight a few of the key points. One of them, and an important one, is whether the treaty prohibits cruel, inhuman, and degrading treatment, which, as I said, is a lesser form of torture, although sometimes, as the Bush administration did, they tried to claim that what they were doing, waterboarding, only fit into that lesser form; in fact, of course, it was the higher form. But the key first question is whether that treaty prohibits cruel, inhuman, and degrading treatment overseas. The Bush administration said it did not, and that’s what allowed it to get away, in its view, with waterboarding, everything it did in prisons around the world, in Guantanamo, etc., claiming that it’s not torture, which they agreed was prohibited overseas, but it’s this lesser form, which they said was not.

The Obama administration two weeks ago started to come out publicly with what their view was going to be on whether the treaty barred cruel, inhuman, and degrading treatment overseas. I did a piece on that for The Real News two weeks ago, in which it was unclear what the administration would do. Well, at the hearing it came out was that they were splitting the baby in two, essentially. They said, cruel, inhuman, and degrading treatment, in our view, is prohibited in facilities over which the U.S. essentially has complete jurisdiction and control. In other words, a place like Guantanamo or a U.S.-flagged ship. But it would not prohibit cruel, inhuman, degrading treatment in a prison in Iraq that the U.S. had prisoners, in a prison in Afghanistan, conceivably in black sites, which were the old torture places, etc., that were located in our countries. So it does leave open and the Obama administration did leave open the possibility that they could still carry out cruel, inhuman, and degrading treatment in one of these zones where they claim they have less control.

Now, they said they wouldn’t do that, but the danger, of course, is that they could do that if there’s another terrorist attack, the next president to do it, and it certainly sends a message to the rest of the world–and I put this in heavy quotes–the leader of the human rights movement in the world, supposedly, actually makes an exception in the Torture Convention for cruel, inhuman, and degrading treatment outside of its own country. So that’s flaw number one.

Flaws number two and three came out really most strikingly in the testimony of a man named Murat Kurnaz. Murat Kurnaz was a Guantanamo detainee. He was represented by the Center for Constitutional Rights, eventually got out of Guantanamo, where he had been tortured. He was put into Guantanamo when he was 19 years old, had been sold for a bounty of $3,000, etc., got out eventually, and has tried to continue leading his life, wrote an important book. And he testified about two things, and it was very powerful. One, he said the last hearing that the U.S. faced in Geneva, the committee said they had to close Guantanamo. And the time that happened was in 2006–eight years ago they were told, the U.S., close Guantanamo because it’s a form of torture, essentially, even if it’s not overt torture in the sense of waterboarding any longer, it’s as Kurnaz says: no charges against people; they have no understanding of when they’re going to get out of there. It’s physical, yes, because they’re in a confined space, they can’t have visitors other than their lawyers, but it’s mental torture as well, certainly cruel and inhuman and degrading treatment, because they have no way out. Seventy-nine of those people have been told they’ve been cleared for release, have not been released. This is 12 years after the founding of Guantanamo.

So a second problem for the U.S. at this hearing on the Convention against Torture is the continuation of Guantanamo.

The third point is that the Torture Convention requires that torturers be prosecuted. The U.S., since the torture scandal broke open in the early 2000s, has not prosecuted a single person for torture. It was approved by Bush, Cheney, down the chain, CIA people, torture throughout this government, and not one person, not a single person who has been tortured. And the key, as Kurnaz and others have said, the key to stopping torture in the future–which is why I’m so skeptical of the pious words of the Obama administration–the key is to prosecute torturers. We haven’t done it. The U.S. claims they tried it with something called the Durham investigation. That was utter BS. They didn’t do it. They never interviewed, as far as we know, any of the key victims who were tortured. That’s the third.

And the fourth, a fourth, which came up in the last couple of days, is what’s called Annex M. Annex M is part of the Army Field Manual. It allows sensory deprivation, it allows sleep deprivation, and it allows solitary confinement. Those three taken together can certainly constitute cruel, inhuman, and degrading treatment, as well as torture. The Obama administration just flip-flopped around it, saying that we require a minimum of four hours of sleep. Well, four hours’ sleep day after day is basically cruel, inhuman, and degrading treatment if not more. When combined with others it can be worse. The people on the committee said, why don’t you just take Annex M out of that? The administration demured on it, as they have for a number of years.

So we still have in our law an authorization to use cruel, inhuman, and degrading treatment if not more. Those are the four key things that came out of this.

And I should say while we’re talking about it, because what I talked about two weeks ago was the current trial going on regarding Guantanamo and forced feeding, there’s a claim made by a number of people at Guantanamo and a particular a client in that case saying that forced feeding amounts to torture, certainly cruel and inhuman and degrading treatment. There was medical testimony about it. The way it’s done amounts to that. Its being done at all amounts to that. There’s been no decision on that, but certainly some of the slippage in the holes that you see in this testimony at Geneva by the United States may be a way of protecting itself from a finding that what it’s doing at Guantanamo with regard to forced feeding is a form of torture.

So while we’re seeing a lot of people say, oh, what the Obama administration is doing is very good here; they’re coming out clearly it’s torture, what the past administration did; it’s adhering to international law again; etc., in fact, if you look even a little more closely, you see that it’s leaving wide holds in the prohibition against torture. And the key one I want to emphasize again is the utter failure of this Obama administration to prosecute a single person for what we saw as rampant, rampant torture.

You can just imagine, take it back–and I’ll close on this–take it back to Pinochet in Chile, to the Argentinian generals. People were outraged that none of them got prosecuted. Ultimately, 10, 20, 30 years later they have. Hopefully, in the United States those CIA people, those administration people are not resting easy, because hopefully we will be able to go after them.

As a final note on that, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights have a case pending in Spain under universal jurisdiction against the people who tortured at Guantanamo, the U.S. officials. And we just yesterday won a huge victory in that. The judge said he was going ahead with the case against the people who did the torture at Guantanamo, and–not the prosecutor, but one of the people in Spain, an official, attorney general, appealed it to a higher court. The higher court upheld the decision to go forward with that case in Spain. So while the U.S. has been a total failure under the Convention against Torture, the Spanish government is going ahead, particularly because four Spanish nationals were tortured at Guantanamo.

WORONCZUK: So, Michael, despite all these flaws that you’ve described and these things that you enumerated that the Obama administration could do to, for example, prosecute torture, there are a lot of commentators who are saying that this at least shows that the Obama administration is more committed to international law than the Bush administration and that these statements that they’ve made shows a greater commitment. Would you agree on that point?

RATNER: The question is words. You know, Obama’s known for his speech making, whether it’s about closing Guantanamo or drones, and I would say the same thing about this. They’re good at words, this administration, but they’re not so at good acting on those words. So I call them pious words. And I would say the holes left in our obligations under the Convention against Torture, mainly the failure to prosecute, but the hole on where cruel, inhuman, and degrading treatment applies, the failure to close Guantanamo, that’s how one should judge the Obama administration and Obama. I don’t think my judgments on pious words that I can hang over my bed and look at when I go to sleep. I make them on actual acts and of suffering human beings at Guantanamo. In the future, what will happen when the next administration, or even perhaps this one, tries to re-engage in torture again? They have to act. They don’t just have to speak.

WORONCZUK: Okay. And then, on a final point, do you think that the statements that they’ve made thus far, that their decisions to, I guess, leave some of the options open for using torture, do you think that this is purposeful, in that–to leave open the possibility of using torture in the future or to provide legal cover for torture that might be occurring right now?

RATNER: That’s a good question. I mean, I sort of think that we don’t know everything that’s going on right now. We know about Guantanamo. We don’t know the jeopardy of people. Certainly, if they see some room on, particularly, cruel and inhuman and degrading treatment, they’re giving themselves some room to engage in that conduct in these prisons in Afghanistan and Iraq, and perhaps on ships that are flagged under other countries, etc. That’s certainly a possibility, and I would–a strong one or not, I don’t know. So it is protecting some of the people, I think, that may be engaged in that conduct today.

I also think you’re getting–you probably have huge pressures–and I don’t forgive Obama for this–you do have huge pressures from the intelligence agencies, all of whom, at least a number of those leaders, like Brennan, etc., should probably be prosecuted for torture, should be prosecuted for torture. And I do think they put huge pressure on the administration, which I think is an administration, in fact, large part run by the intelligence agencies, security agencies, and the military. And I think you’re getting these exceptions because they’re trying to say, as Cheney said, as others said, don’t tie our hands on issues like this; another attack and we’re going to have to torture again. And I think that is a subtext of what happened in Geneva.

WORONCZUK: Okay. Michael Ratner, president emeritus for the Center for Constitutional Rights.

Thank you so much for that report.

RATNER: Thank you for having me on The Real News.

WORONCZUK: And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.

Creative Commons License

Republish our articles for free, online or in print, under a Creative Commons license.

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.