(Updated) Just sayin': C'mon man! Playing Family Feud With The American NewSpeak on Torture Obligations

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for U.S. Torture Prosecutions

“Everything must change, so that everything stays the same.” Il Gattopardo (The Leopard), Giuseppe di Lampedusa

Case in point.

” In contrast to positions previously taken by the U.S. government, the delegation will affirm that U.S. obligations under Article 16, which prohibits cruel, inhuman, or degrading treatment or punishment, do not apply exclusively inside the territorial United States. The delegation in Geneva will make clear, consistent with the text, negotiating history, and the Senate ratification process, that U.S. obligations under Article 16 (as well as under other provisions of the Convention with the same jurisdictional language) apply in places outside the United States that the U.S. government controls as a governmental authority. The delegation will also make clear our conclusion that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to U.S.-registered ships and aircraft.https://firstlook.org/theintercept/2014/11/12/obama-administration-reverses-bush-policy-says-u-s-torture-ban-applies-abroad/ and http://www.whitehouse.gov/the-press-office/2014/11/12/statement-nsc-spokesperson-bernadette-meehan-us-presentation-committee-a

C’mon man.  This is like Family Feud

Hypothetical one: Person is taken off of an American ship and put in a box in a room in a building in Diego Garcia.

Survey Says: America’s obligations applied on the ship but do not apply in the box, in a room, in a building in Diego Garcia.  Why? Because for the building in which the room with the box is, the “U.S. government [does not] control[s] as a governmental authority.”

Hypothetical two: At the request of the United States, a person is flown on a Chinese airplane to a former Soviet base in Eastern Europe where North African governmental interrogators torture or CID them.

Survey says: America’s obligations do not apply on the Chinese airplane, donot apply in the former Soviet base in Eastern Europe, and do not apply to  the North African governmental interrogates who torture or CID the person as the “U.S. government [does not] control[s] as a governmental authority.”

Hypothetical three: US cruelly or inhumanly treats a detainee held at Guantanamo.

Survey says: The delegation’s conclusion that “The delegation will also make clear our conclusion that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to U.S.-registered ships and aircraft.” did not bind the United States and was only the policy position of that delegation in that Administration.  The treaty language does not impose such an obligation on the United States.  Moreover, that statement was only with regard to the situation in Guantanamo on that day – to wit, November 12, 2014 – and did not assert any legal obligation binding on the United States for any future moment or past moment other than that day.

Folks, do I need to go on?  If the people who came to this “consensus” vision really think the rest of the world is so dumb that they will buy this kind of mumbo jumbo, I hope that they will now realize that even in old humble Toledo, Ohio, we can see through this smokescreen.

And, if the folks in the intelligence services who are pushing oh so hard to hide their torture in so myriad ways – whether, in blocking the release of the Senate Select Committee on Intelligence Report, snooping on the hearings at Guantanamo, listening in through smoke detectors on attorney-client detainee meetings, wiping the computers of attorneys, making defense materials “by mistake” available to the prosecution through the secure computer system, having a gag order that keeps attorney and detainee statement about their torture classified, having the FBI interrogate members of the defense teams of detainees in a manner that is completely inappropriate for ostensible security clearance renewals, manipulating every lever of government to create a thick fog of smoke around all their nefarious torture and cruel inhuman and degrading treatment – really think that this is going to work, they have another thing coming.

In Geneva, we heard from detainees.  Now maybe their sycophants in the main stream media will not report that, but the world will report that and the non-sycophants in America will report that.  And the UN Committee Against Torture will write a report that will excoriate in the most diplomatic language that they can, these games.

But, of course, like the Mafia, these intelligence types think they can get away with it.  They cannot get away with it if we insist that they be called to account along with the senior leaders who put in place this obscenity or shielded this obscenity.

C’mon man.  And these are measured words.

  • “The delegation will also clarify the United States’ view that a time of war does not suspend the operation of the Convention, which continues to apply even when a State is engaged in armed conflict.  Although the more specialized laws of war—which contain parallel categorical bans on torture and other inhumane treatment in situations of armed conflict—take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application.” – http://www.whitehouse.gov/the-press-office/2014/11/12/statement-nsc-spokesperson-bernadette-meehan-us-presentation-committee-a

(Updated – Hypo Four: Al-Qaeda 3.0 or some other bogeyman comes along.

Survey Says: USG says in armed conflict “the more specialized laws of war apply.”  We are not sayin “lex specialis” but just – you know – like  this is really special stuff.  Then the US says, by the way, we are neither in an NIAC or an IAC so the Geneva Conventions do not apply or if an IAC then the Geneva Conventions do not apply to these poor saps that we captured.  However, for good order, we then take the poor saps to one of the places described in the first three hypos and we have the crap beaten out of them by others in a place where we do not control with governmental authority.  Seen how it works.

Hypo Five: Military picks up someone and then gives them to CIA who then sends them abroad.

Survey Says:  Goldsmith transfer memo on international humanitarian law remains valid and so military can transfer the person in the occupied territory to another country (extraordinary rendition)  and hand them off to the CIA or – better yet – hand them off to someone from that other country who works with the CIA and who will beat the crap out of the poor sap because Hypos one through three apply.

Anybody getting tired like me of having to show how you could drive a truck through these large loopholes with respect to the absolute ban on torture?

Some, like John Bellinger here (http://www.lawfareblog.com/2014/11/u-s-delegation-asserts-article-16-of-convention-against-torture-applies-outside-u-s-territority-in-certain-circumstances-but-law-of-armed-conflict-takes-precedence-in-situations-of-armed-confli/) would try to have one think that this newspeak is something substantively different from the Bush Administration.  Yet, in so doing, he uses the kind of language that would be used in a future Administration to make sure that the language of today is applied in the way the Bush Administration would want to do it.  As such, once again, the attempt today is more spin then clarification and essentially one more exercise in maintaining flexibility about torture and cruel inhuman and degrading treatment.  As such, it remains another example of an attempt to step back from the absolute prohibition in a manner that in the end weakens the peremptory norm.  It’s just sick no matter how one tries to spin it.  It is just sick.

C’mon man.  We won’t be fooled again.

Thus, the view here http://justsecurity.org/17332/position-torture-convention-extraterritorial/ probably misses what is really going on.  What is really going on was captured by the great Italian author Lampedusa in Il Gattopardo (the Leopard).

“Everything must change, so that everything stays the same.”