The Obama Administration and Obligations Under the Convention Against Torture

Author:Manfred Nowak - Moritz Birk - Tiphanie Crittin
Position:Professor of International Law and Human Rights at the University of Vienna - Research assistant of Professor Nowak at the Ludwig Boltzmann Institute of Human Rights, Vienna. - Research assistant of Professor Nowak at the Ludwig Boltzmann Institute of Human Rights, Vienna
Pages:33-66
The Obama Administration and Obligations Under the
Convention Against Torture
Manfred Nowak*, Moritz Birk** & Tiphanie Crittin***
I. INTRODUCTION .......................................................................................... 34
II. PROTECTION FROM TORTURE AS AN ABSOLUTE AND NON-DEROGABLE
RIGHT ............................................................................................................ 35
III. SHIFT UNDER BUSH: “THE WAR ON TERROR UNDERMINING THE
PROHIBITION OF TORTURE ............................................................................ 37
IV. THE OBAMA ADMINISTRATION AND COMPLIANCE WITH U.S.
OBLIGATIONS UNDER CAT ........................................................................... 41
A. The Obama AdministrationA Paradigm Shift? ........................... 41
B. Dealing With the Past: Providing Justice For Torture Practices
Under the Bush Administration ....................................................... 43
1. Duty to Investigate .................................................................... 44
a) Investigation of the Department of Defense................... 44
b) Investigation of the Central Intelligence Agency ........... 45
c) Investigation of the Department of Justice’s Office of
Legal Counsel Lawyers ....................................................... 46
2. Duty to Prosecute ...................................................................... 47
a) Prosecution of the Department of Justice ...................... 49
b) Prosecution of the Central Intelligence Agency ............. 50
c) Prosecution of the Department of Defense ..................... 50
C. Right to a Remedy and Reparation: Examples of Lawsuits from
“War on Terror” Victims .................................................................... 52
* Dr. Manfred Nowak is Professor of International Law and Human Rights at the University of
Vienna and Director of the Ludwig Boltzmann Institute of Human Rights. In the context of the
United Nations, he was U.N. Special Rapporteur on Torture from December 2004 to November
2010. He has previously served as a member of the U.N. Working Group on Enforced and
Involuntary Disappearances, the U.N. expert on missing persons in the former Yugoslavia, the
U.N. expert on legal questions on enforced disappearances, and as a judge at the Human Rights
Chamber for Bosnia and Herzegovina.
** Mr. Moritz Birk, L.L.M. is a research assistant of Professor Nowak at the Ludwig Boltzmann
Institute of Human Rights, Vienna.
*** Ms. Tiphanie Crittin, M.A. is a research assistant of Professor Nowak at the Ludwig
Boltzmann Institute of Human Rights, Vienna and a member of the Swiss Expert Pool for
Civilian Peacebuilding.
34 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:33]
1. Arar v. Ashcroft .......................................................................... 53
2. Mohamed et al. v. Jeppesen Dataplan ...................................... 54
3. Rasul v. Myers ............................................................................ 55
D. Safeguards for the Prohibition of Torture ........................................ 57
1. Incommunicado Detention and Habeas Corpus ...................... 57
2. Non-Admissibility of Evidence Obtained Under Torture: The
Case of Omar Khadr ....................................................................... 60
3. Principle of Non-Refoulement ................................................... 62
V. CONCLUSION ............................................................................................ 66
I. INTRODUCTION
During its notorious “war on terror,” the U.S. government under
President George W. Bush undermined the absolute prohibition of torture
more than any previous U.S. administration. President Bush and other
members of the U.S. government, most notably Vice-President Dick Cheney
and Secretary of Defense Donald Rumsfeld, decided to severely restrict the
applicable legal framework of the U.S. Constitution, international
humanitarian law, and human rights law in relation to suspected foreign
terrorists. On the basis of flawed “torture memos,” prepared by the Office of
Legal Counsel (“OLC”) of the Departme nt of Justice, the United States
developed “enhanced interrogation methods,”1 a global sys tem of
“extraordinary rendition” flights, 2 and CIA secret detention facilities.3
Foreign terrorist suspects who found themselves in this global spider web
were deprived of all legal remedie s, including habeas corpus rights.
During his presidential election campaig n, Senator Barack Obama
promised “change,” including a “change” from the previous administration’s
policies in the fight against terror ism. Immediately after taking off ice,
President Obama issued three Executive Orders aimed at putting his change
policy into practice.4 He promised to close down the notorious detention
1 Brian Ross & Richard Espisito, CIA’s Harsh Interrogation Techniques Described, ABC NEWS
(Nov. 18, 2005), http://abcnews.go.com/Blotter/Investigation/story?id=1322866.
2 Fact Sheet: Extraordinary Rendition, ACLU (Dec. 6, 2005), http:// www.aclu.org/national-
security/fact-sheet-extraordinary-rendition.
3 Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, available
at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html.
4 See Exec. Ord. No. 13,491, 74 Fed. Reg. 16, 4893 (Jan. 27, 2009) [hereinafter E.O. 13,491],
available at http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf; Exec. Ord. No. 13,492, 74 Fed.
Reg. 16, 4897 (Jan. 27, 2009) [hereinafter E.O. 13,492], available at
http://edocket.access.gpo.gov/2009/pdf/E9-1893.pdf; Exec. Ord. No. 13,493, 74 Fed. Reg. 16, 4901
(Jan. 27, 2009) [hereinafter E.O. 13,493], available at http://edocket.access.gpo.gov/2009/pdf/E9-
1895.pdf.
Spring 2011] OBLIGATIONS UNDER THE CONVENT ION AGAINST TORTURE 35
facilities at Guantánamo Bay within one year and to stop the practices of
torture, secret detention, “extraord inary rendition,” and similar abu ses. By
acting quickly, he created the impression no t only that he wished to fulfill his
election promises, but also that this new policy was meant to implement the
legal obligations of the United State s under international law.
This Article will analyze the various o bligations of the Obama
Administration under the U.N. Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”), to which the
United States has been a party since 1994. 5 The CAT provides a number of
specific state obligations to prev ent torture, including providing victims o f
torture with the right to an e ffective remedy and adequate reparation,
criminalizing torture, investigating torture practices, and bringing the
perpetrators of torture to justice. Th ese obligations, like all obligation s under
international law, continue to apply after a change of government. 6 This
Article therefore will look not only at how the Obama Admin istration is
complying with its legal obligation s under the CAT, but also how it deal s with
the legacy of the Bush Administr ation. In particular, this Article will analyze
the extent to which the current administration has investigated past torture
practices, has brought perpetrators of torture under the Bush Administration
to justice, and has provided victims of torture with an effective remedy and
adequate reparation for the harm suffered.
II. PROTECTION FROM TORTURE AS AN ABSOLUTE AND NON-DEROGABLE RIGHT
Torture constitutes a direct and deliberate attack o n the core of human
personality and dignity. Together with slavery, it constitutes one of the most
extreme forms of dehumanizing human beings by depriving them of human
dignity.7 In respect of its par ticular severity, international law afford s
protection from torture a special position as one of the few absolute and non-
derogable human rights. 8
The absolute nature of the prohibition of torture means that the right to
personal integrity and dignity canno t be balanced against any other r ight or
concern, including national security intere sts. Its absolute nature is explicitly
stated in Article 7 of the Inter national Covenant on Civil and Poli tical Rights
(“ICCPR”).9 Article 4(2) of the ICCPR affirms that States Partie s may not
5 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, opened for signature, Feb. 4, 1985, 1465 U.N.T.S. 85 [hereinafter
CAT].
6 Id.
7 MANFRED NOWAK & ELIZABETH MCARTHUR, THE UNITED NATIONS CONVENTION AGAINST
TORTURE: A COMMENTARY 1 (2008).
8 Next to slavery, slave trade, servitude, and the retroactive application of criminal law.
9 International Covenant on Civil and Political Rights art. 4(2), opened for signature Mar. 23,
1976, 999 U.N.T.S. 171 [hereinafter ICCPR], available at
http://www2.ohchr.org/english/law/ccpr.htm.

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