Abraham D. Sofaer on the McCain torture amendment

Abraham D. Sofaer, legal advisor to the State Department during the Bush senior administration, now a senior fellow of the Hoover Institution, on the absoluteness of the prohibition on torture, in the Wall Street Journal, Weekend edition, here (reg. reqd.). Mr. Sofaer argues that the Bush administration should accept the McCain admendment. Excerpts:

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No Exceptions
By ABRAHAM D. SOFAER
November 26, 2005; Page A11
Wall Street Journal

Unquestionably the war in Iraq is now part of the war on terror. It is a pivotal battle against fascists and zealots over the right of people to govern themselves by democratic means. Essential as these objectives are, it is illegal for any official of any government to use torture, or cruel, inhuman or degrading treatment, as punishment or in interrogations. President Bush has properly ordered that those who have disgraced America with such conduct be prosecuted, and anyone who authorized such conduct should also be brought to justice.

Official U.S. policy is to abide by its commitment to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The convention was drafted and adopted with U.S. involvement, and it has been ratified by 140 States. It had the full support of Presidents Ronald Reagan and George H.W. Bush. Violations of the convention are made criminal by U.S. law.

Despite the official policy of applying the convention to all U.S. officials everywhere, the Department of Justice has issued an opinion claiming that Article 16 of the treaty applies only in the territorial U.S. This conclusion is wrong. It has created confusion in the field, and it exposes the president and the nation to criticism.

Art. 16 imposes on every State Party the obligation to prevent, not only torture, but also "cruel, inhuman, or degrading" acts in any "territory under its jurisdiction." When the convention was presented to the Senate for ratification, Sen. Jesse Helms raised several issues, including the possibility that other states or tribunals might claim that the words of Art. 16 should be construed more broadly than the "cruel or unusual punishment" clause of our Constitution. He felt that U.S. officials should not have to deal with different sets of standards where the words involved were so similar.

The Reagan and Bush administrations agreed, proposing a reservation to the treaty aimed at limiting the meaning of the term in Art. 16 -- "cruel, inhuman or degrading" -- to what is prohibited by the U.S. Constitution. Although this reservation involved the scope and meaning of treaty terms, the current Department of Justice has claimed that this reservation limits the U.S. obligation to enforce Art. 16 to the geographic territory of the U.S., on the grounds that the Supreme Court has held that the Eighth Amendment is inapplicable beyond U.S. territory. DOJ's position is untenable for several reasons.

Most fundamentally, the purpose and language of the reservation was not intended to restrict the U.S. commitment geographically, and would give the words "territory under its jurisdiction" a more limited meaning under Art. 16 than the DOJ agrees the same words have under Article 2, which requires State Parties to take measures against acts of torture. Restricting enforcement of Art. 16 to U.S. territory would fundamentally undermine the treaty's purpose of preventing "cruel, inhuman or degrading" treatment by any State in any place it has "jurisdiction."

The administration moreover claims that its proposed reading and amendment are not intended to allow U.S. officials actually to engage in "cruel, inhuman or degrading" acts outside the U.S., but only to preserve "flexibility" and protect such officials from charges that they have engaged in such acts. This is unsustainable: Any exception to the treaty's requirement is understandably seen as an effort to allow illegal acts, undermining our diplomatic initiative to change America's image abroad. Actually, a territorial limitation for Art. 16 creates risks for officials who might violate the provision. No other State Party is likely to accept the U.S. view, and all of them are obliged to enforce the treaty if the U.S. fails to do so. Meanwhile, U.S. courts could reject the Justice Department position and subject officials to the criminal statutes passed to enforce the convention.

While the administration says that the post-9/11 world demands greater flexibility to use "cruel, inhuman or degrading" pressure or punishment, the convention includes a provision that precludes this argument: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." To be sure, the treaty's terms are vague as written, but Defense Department guidelines have provided interrogators adequate guidance as to the permissibility or impropriety of all known forms of interrogation.

Congress can and should authorize a system of judicial review that ensures consistent and authoritative interpretations. The notion that the conduct of the enemies we face is so lawless that we should make exceptions to the normal rules is a formula for subjectivity and lawlessness. The rule of law allows the U.S. to punish terrorists harshly after affording them due process, and such punishment may properly generate cooperation from those seeking leniency.
In order to end the uncertainty created by the Justice Department's position, Sen. John McCain introduced an amendment to the Defense Department's authorization bill that would establish the Army Field Manual as the uniform standard for all U.S. interrogations, and would prohibit cruel, inhuman or degrading treatment of persons in U.S. custody anywhere in the world. The amendment is supported by former Secretary of State Colin Powell, and by over 30 retired generals of the U.S. armed forces. Nonetheless, the administration objects to this provision and has insisted that at least CIA officials should be exempt. If U.S. policy prohibits such conduct, however, why immunize CIA interrogators who violate U.S. policy? Despite a threatened veto, the Senate voted 90-6 to adopt the amendment.

President Bush should accept the McCain Amendment. He has repeatedly affirmed that the dignity and equality of all human beings stems from natural law that overrides the claims of particular societies and ideologies. The Torture Convention represents an effort to translate this principle into practice, through universal adoption and enforcement. The U.S. does not need to violate its provisions, anywhere, to win the war on terror.

(Mr. Sofaer, the George P. Shultz Senior Fellow at the Hoover Institution, was a legal adviser to the U.S. State Department and presented the Torture Convention to the Senate for ratification in 1990.)

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