Waterboarding the Fish: CAT Reservation USG Deliberation: It's About the Torture

By Benjamin G Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

Charlie Savage recently reported on two points in the interagency on cruel inhuman and degrading treatment (CID).  The first is on the extent the provisions of the Convention Against Torture apply abroad and the second is the extent to which the Bush-Gonzales anomalous interpretation of the US reservation on CID as being both substantive AND territorial should be reaffirmed.

Contrary to Jack Goldsmith (http://www.lawfareblog.com/2014/10/the-debate-about-the-extraterritorial-scope-of-the-torture-conventions-provisions-on-cruelty-is-almost-certainly-not-about-usg-interrogation-policy/),  I believe it is about the torture.  The heart of the debate is NOT about Article 16 from the published reports but is about the US CID Constitutional standard reservation.  One might ask, why would the reservation be the focus?

The answer is straightforward. In the Reagan era, as described by then Legal Advisor Abraham Sofaer in his 2005 testimony, the view was that the Constitutional reservation was substantive and did not reflect a view that the CID prohibition did not apply abroad (unlike the torture prohibition).

Fast forward to Bush era legal sophistry and the reservation is reinterpreted in secret. When revealed at the Gonzales hearing in 2005, Congress moves the Detainee Treatment Act (with Bush signing statement) forward to return to the Reagan era view which the Obama Administration retains.

By trying to get a reaffirmation of the Bush-Gonzales anomalous view during this first CAT review of the U.S. since 2006, the effort is to try and recast the Bush anomaly in force between 2001 and 2005 as something other than what it was, a devious part of the effort to torture.  It is to try and normalize the abhorrent.

The Article 16 debate, now that Obama has conceded we tortured, is a further effort to then be able to retroactively say CAT did not apply at all to the folks in the CIA sites, Gitmo, and around the world in 54 countries in which we and our servant states tortured.

People of goodwill in the interagency should not let themselves be played by this thinly veiled CYA effort to do what the French call “noyer le poisson” or drown the fish in the sea. Or in this case, waterboard the fish and the law.

As the Who said, we won’t be fooled again.