Rice Shifts U.S. Policy on Interrogation, and Gets No Credit

Secretary of State Condi Rice appears to have shifted or at least clarified U.S. administration policy over whether the Convention Against Torture’s prohibition of “cruel, inhuman, and degrading” treatment extends to U.S. government personnel operating overseas. In a news conference with the Ukraine Premier, she stated (emphasis added):

As a matter of U.S. policy, the United States’ obligations under the CAT [United Nations Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.

Despite this statement, both this Washington Post article and this NYT piece suggest that Rice’s statement has “raised questions” largely because she couches her statement “as a matter of policy.” But so what? Because the Convention Against Torture is non-self executing, and because Congress had not (prior to the McCain Amendment) attempted to extend “CID” prohibitions overseas, then any decision to do so by the executive branch is plainly “a matter of policy.” It is a matter of policy until or unless Congress decides to codify it as a matter of “law” (which it might do so in the McCain Amendment).

U.S. statutes implementing the Convention Against Torture (such as 18 U.S.C. § 2340A(a).) have only criminalized torture by U.S. personnel overseas, and not “cruel, inhuman and degrading” treatment. Article 16 of the CAT could be read in this limited way: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. . . .” (emphasis added). Note also that the CAT Article 5 treats torture differently, requiring countries to establish jurisdiction over torture “[w]hen the alleged offender is a national of that State;” or “[w]hen the victim was a national of that State if that State considers it appropriate.“

So Rice appears to have won an internal administration battle of “policy”, which shouldn’t be sniffed at by commentators. The U.S. government has unequivocally agreed to prohibit “CID” treatment by U.S. personnel overseas. This sounds like the right decision, at least as a matter of policy. No rendition policy is going to succeed without cooperation of foreign governments and accepting the prohibition on “cruel, inhumane, and degrading” treatment is politically necessary. I’m less sure this is required by U.S. treaty obligations, but that is now an academic question.