The Obama Administration Debate on the Convention Against Torture and Anas al-Libi

For some reason, the NYT decided to bury this article from Charlie Savage on page A21. It explains that the Obama Administration is debating internally whether to overturn Obama’s ban against cruelty (which is also mandated by the Detainee Treatment Act). Some intelligence lawyers, apparently, believe Obama’s torture ban and the DTA are too limiting.

It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.


State Department lawyers are said to be pushing to officially abandon the Bush-era interpretation. Doing so would require no policy changes, since Mr. Obama issued an executive order in 2009 that forbade cruel interrogations anywhere and made it harder for a future administration to return to torture.

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

There were remarkable amounts of denial in response to this, from people who seem totally unaware of the kind of practices — that appear to include isolation, sleep deprivation, food manipulation, and other forms of coercion — currently used by High Value Interrogation Group (HIG), the inter-Agency group used to interrogate terrorist suspects. And this post from David Luban, which lays out some of the loopholes the government might be using to engage in abuse, misses a few.

We know, for example, that there are 2 OLC opinions that say Presidents don’t have to change the text of Executive Orders they choose to ignore, meaning Obama could ignore his torture ban “legally.” There’s also the Appendix M OLC opinion that has approved whatever DOD wants to sneak into the sometimes classified appendix in advance.

All of these issues have been invoked in the case of Anas al-Libi, who recently testified in his challenge to the use of the statements he made to FBI’s Clean Team in his trial, invoking the anxiety produced by the “CIA” interrogation al-Libi experienced on the USS San Antonio. (The interrogation was conducted by the HIG; note that while al-Libi has retained counsel, Bernard Kleinman, I believe he also still has public defenders, including Sabrina Shroff, who has represented HIG-interrogated defendants before, so she can attest to the continuity of the methods involved.)

Al-Libi, a 50-year-old Libyan whose legal name is Nazi Abdul al-Ruqai, testified before U.S. District Judge Lewis Kaplan in an evidentiary hearing tightly focused on the moments following al-Libi’s transfer on October 12, 2013, from military to civilian custody.

Given the situation, “I couldn’t concentrate on anything,” al-Libi told the court through an Arabic translator. When asked by his attorney, Bernard Kleinman, why he signed the papers waving his Miranda rights and paving the way for an FBI interview, al-Libi said, “You have no choice but to sign it.”

And in a filing calling on the government to preserve videotapes and any other records of his shipboard interrogation, al-Libi’s Libyan-retained lawyer invoked precisely the law and Executive Order in question.

18. Upon information and belief he was subjected to daily interrogation by professsional interrogator[s] of the CIA in an unrelenting, hostile, and extraordinary manner.

19.Upon information and belief this interrogation was conducted in a manner in violation of the Defendant’s rights under the Fifth and Sixth Amendments to the federal Constitution, and under applicable treaties and conventions to which the United States is a signatory.2

20.Furthermore, this interrogation was conducted in a manner of inhumane treatment. Notwithstanding the changes effected by both Congress3 and the President4 after the revelations of physical abuse and torture as conducted by the CIA in the name of national security, such measures (even if actually observed by the participants and interrogators) could easily lead to harsh, improper and inhumane treatment that would taint any and all subsequent interrogations, even if preceded by a Miranda warning and waiver execution, and conducted by the FBI or some other federal law enforcement agents.

21. Upon information and belief, these interrogations were videotaped, and otherwise recorded by the CIA, among other U.S. Government agencies.

22.It is, furthermore, reasonable and logical to presume that the interrogator[s] produced hard copy notes of their actions, and provided reports to other representatives of the United States Government (both in the Executive and Legislative branches).

3 In 2005 Congress passed the Detainee Treatment Act, Pub. L. No. 109-148, codified at U.S.C. §§ 2000dd, 2000dd-0, and 2000dd-J, which applied the U.S. Army Field Manual to all military interrogations. It should be noted that the Act specifically provides that

No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

The degree and extent to which the United States Government violated this statute in the kidnapping, abduction, and interrogation of the Defendant are issues to be raised similarly in any subsequent motions made pursuant to Rule 12(b).

4 On January 22, 2009, President Obama issued Executive Order 13491, which directed the CIA to adopt the methods of interrogation as set forth in the U.S. Army Field Manual. See E.O. 13491,74 Fed. Reg. 4893 (Jan. 22, 2009).

5 Both the Detainee Treatment Act and E.O. 13491 refer to the U.S. ARMY FIELD MANUAL, HUMAN INTELLIGENCE COLLECTOR OPERATIONS, referenced as FM 2.22.3 (Sept. 2006 ed.).

I think there are probably a number of HIG-interrogated individuals — including some who were interrogated entirely within the US — who could claim they were subject to degrading treatment. But in this case, the person in question has a privately-retained lawyer, which may present significant concerns for the interrogators in question.

Meanwhile, the government is not providing al-Libi cancer treatment doctors at Duke said during the summer he needs to address liver cancer. Maybe the government is just hoping al-Libi will succumb to cancer before he can press these issues?

Whatever the plan, the government is at least entertaining widening the loopholes that they used in the past to protect torturers.

12 replies
  1. Don Bacon says:

    “But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts.”
    For government lawyers, the rule of law is obsoleted by operational needs, OLC-style.

  2. orionATL says:

    the question is always there:

    why do nat sec lawyers persist in believing they need these techniques of psychological and physical torture? have they learned nothing from the past 12 years of such torture?

    get inaccurate information. violate a human rights treaty. subject the u.s. to international derision for the gross hypocrisy of its human rights campaign.

    • What Constitution? says:

      Treating the questions you ably posed as being something other that rhetorical, it honestly appears that the most credible response our governmental torture advocates could come up with is “because we can.” Shameful they would say this, shameful that they continue to believe that maybe they can get away with it, shameful that they haven’t yet been proven wrong — and shameful that, even assuming the new Obama administration took steps to do so, we’re now finding out that the current Obama administration is “revisiting” the “issue”.

  3. galljdaj says:

    From Our historical view of ‘Treaties’, we are too big to bother about observing the details we don’t ‘like'(or the truth of them).

    And as the lil bush gang totally disavowed Our Constitution, We have another huge problem, The masses of Peoples in the USA are getting fucked by those governing us! The result being unrest ready for a revolution. The bastards know it, thus the use of the military for policing both inside and outside the Country.

    So now we have a govt that proclaims they do not have to follow the ‘law’ inside or outside the country to protect ‘their interests’. And. Hear is my point; This claim all stems from the concept that Our Laws don’t bar those in charge from criminal activity when they keep it secret. Also, when caught or identified the catch is in their favor. Conspiracy committed within the USA does not count as a crime or criminal if the intent is targeted outside the USA! aND THAT IS PURE usa bullshit! The Constitution bars the US Government from lying and breaking Our Laws. No amount of weasel wording gets around the Rule of Law! Inside and Outside are not in Our Law!

  4. galljdaj says:

    Something I became aware of, just in the past week, Our postal system has been corrupted along with the other communications systems we have. I have suspected as much for about 15 years of ‘Problems’. This time it came as an official communication. Canada is the only Country that will provide “tracking” and therefore your package is not receiving tracking information.

    I also was told the postal service has the ‘right’ to open packages, and they can do it so ‘you’ will never know! Another bit of interest regarding Insurance. I asked the cost of insurance, and to which I was asked how much? I picked 1 million, and was told ~$1700. I asked what’s the maximum pay out, and was told $25000, but they would insure for a million. A license to steal!

    In the short, I was sold tracking, and then informed its the country I sent to fault that the US WILL NOT PROVIDE TRACKING.

  5. P J Evans says:

    Failing to provide al-Libi with treatment that doctors say is necessary is probably in itself a violation of a whole lot of things, starting with the Geneva conventions and getting all the way down to the religious beliefs that so many people claim to have.

    I wouldn’t wish liver cancer on anyone.

  6. galljdaj says:

    An update to my post of 11:38 am, Reply #4. I was just told that once a package leaves the local office there is no way to track it until ‘customs’ releases the info. I was told the package was sent to Canada, when in fact I had sent it to another country! Why would the USPS send my package to another country? The only reason I can think of is Canada will open the package and report back as to the contents.

    Are Our communications safe? Hell No!

    • galljdaj says:

      Then explain how it gets shut off, locked down, non functioning, and or selectively curtailed! The Point is; spying is extended into the US MAIL(S), and likely its illegally selective!

  7. tit in the wringer says:

    This is nothing new, this is CIA stickin’ to its story. The torturers drove out the last of the law-abiding bureaucrats, at DRL at State. The USG is cornered and can see no alternative to its original course of bad-faith perversion of the letter of the law. The government is fixating on a irrelevant distinction between territory and jurisdiction, perversely interpreting the Convention Against Torture as if it were a line of COBOL instead of a sentence in the English language. That’s the only way they can maintain that they’re complying with the treaty. But the treaty bodies that implement the torture ban have said, it’s simple. Responsibility stems from control. If a state controls you, that state is bound by its CAT commitments.

    Treaty bodies, charter bodies, and special procedures have characterized the US torture gulag in the terms that define crimes against humanity. Next month this is coming to a head in Geneva. Evidence of serious crimes triggers the Committee’s confidential examination powers and, at the Committee’s option, publication of results. The treaty body’s confirmation of widespread and systematic torture would put the US government’s gulag in the jurisdiction of the International Criminal Court. The ICC has already accepted evidence of systematic torture by US satellite Britain and opened an investigation of US government CIDT in Aghanistan. The US may have to use its Security Council veto to escape ICC investigation. And even if the US were to fend off the ICC, formal condemnation from UN organs would become customary international law in the World Court, which has set a precedent for considering the rights of individual victims.

    “The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.” Peremptory norms of international law (see A/56/10 Ch. III) require all states to enforce this.

    Locking up a few enlisted goobers won’t cut it this time.

  8. What Constitution? says:

    On the plus side… certainly the most rational and indeed obligatory international response to the Obama administration rescinding even the appearance of respect for international law in these regards will involve meeting the likes of Cheney, or Bush, or their torturing minions on the tarmac with handcuffs when any of them next demonstrate the chutzpah of setting foot abroad. Good riddance to bad rubbish.

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