Global Policy Forum

By Warren Richey

The US government's use of aggressive interrogation tactics in the war on terror is under a United Nations microscope. The Bush administration has defended its tactics as a means of obtaining actionable intelligence to help thwart terror plots. Critics say it has opened the door to illegal abuse of detainees and even torture. Just how "aggressive" the tactics have been is under close scrutiny by the UN's Committee Against Torture in Geneva.

A US delegation appeared before the committee Friday - its first appearance since 9/11 - and it is to face a second round of questioning Monday. The committee is expected to issue a report by May 19. Although it has no specific enforcement powers, the session is viewed as an opportunity to hold countries publicly accountable.

At issue is whether the Bush administration has violated an international ban on torture and abuse of prisoners in the war on terror. State Department legal adviser John Bellinger told the 10-member committee Friday that the US government is fully committed to upholding national and international obligations to eradicate torture. Mr. Bellinger and other US officials acknowledged that mistakes had been made in US treatment of detainees, but that those mistakes were the result of a handful of individuals acting in violation of the law rather than a systemic effort by the US government to circumvent international treaty obligations.

The 26-member US delegation to the hearing includes representatives from the Defense, Justice, Homeland Security, and State departments. But it does not include anyone from the Central Intelligence Agency. The American delegation declined to discuss allegations about Al Qaeda suspects being subjected to harsh treatment - including simulated drownings - at secret detention camps in various countries. Bellinger said it would not be appropriate for the UN committee to delve into "alleged intelligence activities."

Committee member Andreas Mavrommatis disagreed. He said intelligence matters would be treated with care, but they were not exempt from the UN committee's oversight. "If during the intelligence activities there is a violation of the convention, it's our duty to investigate [it] and your duty to answer," Mr. Mavrommatis said.

What human rights groups reported

A day earlier the committee, made up of 10 international law experts, heard testimony from human rights groups that had prepared reports charging the United States with flagrant violations of the treaty.

"Evidence continues to emerge of widespread torture and other cruel, inhuman, or degrading treatment of detainees held in US custody in Afghanistan, Guantánamo Bay, Cuba, Iraq and other locations," said Amnesty International in a report released last week. "While the government continues to assert that abuses resulted for the most part from the actions of a few 'aberrant' soldiers and lack of oversight, there is clear evidence that much of the ill-treatment has stemmed directly from officially sanctioned procedures and policies."

The American Civil Liberties Union leveled similar charges in its report to the committee: "The US government, in the aftermath of the 9/11 attacks, decided to fight terrorism by picking and choosing what principles of humanitarian and human rights law to apply." The report also quoted a former CIA counterterrorism chief as saying: "There was a before-9/11, and an after-9/11. After 9/11 the gloves came off." In the months after 9/11, the Bush administration adopted a two-front strategy aimed at preventing future acts of terrorism against the US.

The first involved direct military action - disrupting the operations of Osama bin Laden and his Al Qaeda associates by forcing them to flee and live as fugitives. The second prong - the use of aggressive interrogation tactics - has been more controversial. The 1987 Convention Against Torture establishes fundamental principles of human rights that signatory nations agree to uphold. Each of the 140 signatory nations must appear before the Committee Against Torture to report steps they are taking to ensure compliance with the treaty.

The US delegation's appearance is part of that routine process, but because of the ongoing war on terror and the continuing controversy about treatment of terror suspects, the US appearance before the committee is anything but routine. Much of the debate revolves around conflicting and murky definitions of torture and abuse. The US ratified the convention in 1994, but only after noting several exceptions to its terms.

The UN treaty bars not just torture, but also "cruel, inhuman or degrading treatment or punishment." In agreeing to sign the treaty, the US said it would enforce its obligations only so far as it bars treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the US Constitution.

This limitation was made by American lawmakers concerned that the term "degrading" in the UN convention was not narrowly defined and might subject the US to allegations of treaty violations based on subjective determinations by UN officials rather than established legal standards in the US.

A geographical limitation

Following the 9/11 attacks, that US limitation took on an added dimension. Lawyers in the Bush administration said linkage to US constitutional protections meant that America's treaty obligations applied only in those jurisdictions where the US Constitution applied. In effect, it gave a green light for the use of harsh interrogation tactics overseas beyond the reach of the US Constitution.

It was this geographical limitation on American compliance with the Convention Against Torture that prompted Sen. John McCain (R) of Arizona to draft an amendment to a bill last year stating that no one in US custody, "regardless of nationality or physical location," shall be subject to "cruel, inhuman or degrading treatment."

Congress approved the amendment, and President Bush signed it into law. But the president also reserved the right to bypass the provision should he deem it necessary as commander in chief to protect the US from terrorism. The committee is expected to focus on this issue among others Monday.

"For me, this is kind of the main show," says Elisa Massimino of New York-based Human Rights First. "We would look for [the Bush administration] to use this as an opportunity to embrace the McCain law." Others say the White House is correct to preserve as much flexibility as possible in the war on terror.

"There is some uncertainty about the meaning of 'degrading' conduct," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation in Washington. "And when you are engaging in real-time battlefield interrogations abroad, it is sensible not to subject that sort of interrogation to a judicial standard as to whether it is degrading or not." "That is the heart of what the dispute is all about," Mr. Gaziano says.