The Torture Team

Harper's Magazine

On January 28, 2008, the Committee Against Torture adopted General Comment 2 (CAT/C/GC/2), an important and persuasive reaffirmation of basic values of the Convention Against Torture, starting with one that lies at its heart: the universality principle. The Committee’s work on this document is admirable. But the circumstances that made it necessary were distressing. The United States, a nation which played a vital role in advocating the Convention, and indeed much of the edifice of international human rights, adopted a series of policies that reflected persistent gross breaches of the Convention—particularly with respect to the operation of a concentration camp in Guantánamo, and other prison operations in Afghanistan and Iraq, as well as “black sites” maintained by U.S. intelligence operatives around the world. When called to account for its misconduct by the global community, the Bush Administration responded by making a series of grotesque arguments which were designed to convert the Convention into a trivial bagatelle with no obvious application or relevance. This assault was led by John Bellinger, the current legal adviser in the Department of State.

Professors Kälin and Satterthwaite have reviewed the position that the United States took with respect to its obligations under the Convention Against Torture that led the expert committee to issue General Comment 2. Professor Kälin reviewed the basic argument that human rights law does not apply in the context of the war on terror, because that war is governed by the law of armed conflict as a lex specialis. He also reviewed the claim that the Convention should not be applied extraterritorially. Professor Satterthwaite covered much the same ground, and added to this a very persuasive discussion of the practice of extraordinary rendition and the violation of the policy of non-refoulement–that is, return of persons to custodians who would more likely than not torture them–that it presents. I could review these arguments once more, but that would serve little purpose. In fact, I fully embrace the analysis that my predecessors on the podium have presented.

Is it really appropriate to honor the Bush Administration’s posture with so much learned analysis? I don’t think so. In fact, the Bush Administrations arguments do not meet a test of facial plausibility—as Meg Satterthwaite said, they are riddled with contradictions, irreconcilable with the actual text of the Convention, and for the most part just plain incoherent. So it makes sense to ask, “What were they thinking?” The preposterous positions taken by the United States team during the country review process in Geneva were not driven by anything like a careful study of law. To the contrary, they were a frontal assault on well-established, fundamental U.S. policies that date back to the Revolutionary War (General Washington prohibition of torture in 1777) and the Civil War (Abraham Lincoln’s prohibition of torture in General Orders No. 100 from 1863). The posture taken by the Bush Administration was clearly a product of reverse engineering for purposes of protecting not the national interests of the United States, but the personal exposure of a group of individuals who decided to foment a policy of torture...........