The Bush Administration’s Unreasonable Interpretation of CAT

Last week, Julian criticized Hamdan for its failure “to defer to the executive’s reasonable interpretations of the relevant statutes, treaties, and customary international law of war.” Julian’s use of the term “reasonable” implies that, at least in principle, the executive could offer an unreasonable interpretation of a statute, treaty, or customary rule — one that, accordingly, would not require deference.

As Marty Lederman discussed yesterday at Balkinization, the Bush administration’s completely implausible view of the Convention Against Torture (CAT) is precisely the kind of interpretation that does not deserve judicial deference. According to the administration, CAT applies only in peacetime; in armed conflict, it is superceded by the laws of war. Here is what the State Department recently told the U.N. Committee Against Torture in reference to detainee operations at GITMO and in Iraq and Afghanistan:

It is the view of the United States that these detention operations are governed by the law of armed conflict, which is the lex specialis applicable to those operations.

As a general matter, countries negotiating the Convention were principally focused on dealing with rights to be afforded to people through the operation of ordinary domestic legal processes and were not attempting to craft rules that would govern armed conflict.

At the conclusion of the negotiation of the Convention, the United States made clear “that the convention . . . was never intended to apply to armed conflicts. . . .” The United States emphasized that having the Convention apply to armed conflicts “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.” No country objected to this understanding.

It is difficult to imagine a more unreasonable interpretation of a treaty. The text of CAT clearly indicates its applicability to armed conflict. Article 2 requires each State Party to “take effective legislative, administrative, judicial or other measure to prevent acts of torture in any territory under its jurisdiction,” and then expressly provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”

The purpose of CAT confirms this interpretation. That purpose is set forth in the Preamble: “to make more effective the struggle against torture and other cruel, inhuman, or degrading treatment or punishment throughout the world.” It is difficult to see how the Bush administration can reconcile that blanket condemnation of torture with its position that the laws of armed conflict supercede CAT, especially given that the administration only wants the laws of armed conflict to apply because it believes — wrongly, as Marty has explained again and again — that they do not apply to the conflict with al Qaeda.

Article 1 of CAT is also illuminating. It provides: “this article is without prejudice to any international instrument… which does or may contain provisions of wider application.” Although Article 1 contemplates CAT existing alongside other international instruments that prohibit torture, the wording of the article makes clear that CAT is “without prejudice” to international instruments that overprotect individuals against torture, not to those that underprotect them. The Rome Statute is a good example of an instrument that overprotects: unlike CAT, the Rome Statute criminalizes torture committed by private individuals and (as a crime against humanity) torture committed for no particular reason. The Bush administration’s version of the Geneva Conventions, by contrast, underprotects an entire category of individuals — alleged terrorists — relative to CAT, an outcome that is fundamentally inconsistent with Article 1.

Because the text and purpose of CAT is clear, normal principles of treaty interpretation make reference to the treaty’s drafting history unnecessary. Even if the drafting history was relevant, though, it would does not support the Bush administration’s position. First, the Bush administration is simply inventing the idea that “countries negotiating the Convention were principally focused on dealing with rights to be afforded to people through the operation of ordinary domestic legal processes and were not attempting to craft rules that would govern armed conflict.” There is no evidence of such an intent in the drafting history, and such an intent is irreconcilable with CAT’s categorical prohibition of torture. Article 10, for example, specifically provides that “[e]ach State Party shall include this prohibition [on torture] in the rules or instructions issued in regard to the duties and functions of” a number of persons, including “law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.”

As for the Bush administration’s argument that no country objected to its claim “that the convention . . . was never intended to apply to armed conflicts” — what is there to say? Not even this administration can seriously believe that one country’s idiosyncratic interpretation of a treaty is determinative as long as no other country disagrees with it. If other countries didn’t object, it was most likely because they were shocked into silence by the idea, which would have undermined the entire purpose of CAT. Indeed, the Committee Against Torture specifically rejected the U.S. position:

The Committee regrets the State party’s opinion that the Convention is not applicable in times and in the context of armed conflict, on the basis of the argument that the “law of armed conflict” is the exclusive lex specialis applicable, and that the Convention’s application “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.

It’s also worth noting that none of the U.S.’s many reservations and interpretive understandings regarding CAT (ratified in 1994 under the Clinton administration) mention the idea that the treaty was not intended to apply to armed conflict — further evidence that the Bush administration’s position is motivated not by “the objective of eradicating torture,” but by the desire to permit it.

The Bush administration’s ends-driven position on CAT demonstrates the importance of judicial oversight of the executive’s treaty interpretation. Deference is indeed due to “reasonable” interpretations. But this administration has proved time and again that its approach to treaties has nothing to do with reason, and everything to do with politics.