By CHARLIE SAVAGE – MARCH 6, 2014
WASHINGTON — In 1995, Conrad Harper, the Clinton administration’s top State Department lawyer, appeared before a United Nations panel in Geneva to discuss American compliance with a global Bill of Rights-style treaty the Senate had recently ratified, and he was asked a pointed question: Did the United States believe it applied outside its borders?
Mr. Harper returned two days later and delivered an answer: American officials, he said, had no obligations under the rights accord when operating abroad. The Bush administration would amplify that claim after the Sept. 11 attacks — and extend it to another United Nations convention that bans the use of torture — to justify its treatment of terrorism suspects in overseas prisons operated by the military and the C.I.A.
The United Nations panel in Geneva that monitors compliance with the rights treaty disagrees with the American interpretation, and human rights advocates have urged the United States to reverse its position when it sends a delegation to answer the panel’s questions next week. But the Obama administration is unlikely to do that, according to interviews, rejecting a strong push by two high-ranking State Department officials from President Obama’s first term.
Caitlin Hayden, a National Security Council spokeswoman, declined to discuss deliberations but defended the existing interpretation of the accord as applying only within American borders. Called the International Covenant on Civil and Political Rights, it bars such things as unfair trials, arbitrary killings and the imprisonment of people without judicial review.
“The legal position held by prior administrations — Republican and Democratic — is a carefully considered position with a strong basis in the text of the treaty, and there is a very high bar for change under those circumstances,” she said.
Still, in a 56-page internal memo, the State Department’s former top lawyer, Harold Koh, concluded in October 2010 that the “best reading” of the accord is that it does “impose certain obligations on a State Party’s extraterritorial conduct.”
And in January 2013 Mr. Koh went further in a 90-page memo on the Convention Against Torture. “In my legal opinion, it is not legally available to policy makers to claim” it has no application abroad, he wrote. Michael Posner, the former assistant secretary for human rights, shared that view. Both stepped down in 2013 and have not been replaced by political appointees.
In Mr. Obama’s first term, when the State Department was preparing to file an earlier report to the United Nations about the accord, both officials pushed to reverse the United States’ position. But military and intelligence lawyers resisted, officials said, and the final report in 2011 said only that the United States was “mindful” that many disagreed with the position it had taken in the past.
The ambiguous comment in the report left the door open to re-examine the question for the coming United Nations presentation. But the administration never fully re-engaged with the issue, officials said. No one produced a memo rebutting the details of Mr. Koh’s analysis, though one official maintained the memos were never cleared as the official State Department position, and said agencies had “unanimously” concluded the existing interpretation was sound.
Mr. Koh, who now teaches at Yale, declined to comment.
Ms. Hayden, citing an executive order by Mr. Obama requiring interrogations to be “consistent with the requirements” of the torture convention, argued that “there’s no question we take seriously the need to protect civilians outside our borders.” She emphasized that the government considered itself bound abroad by the Geneva Conventions and domestic detainee abuse laws.
Mr. Posner, now a New York University professor, said his hope was that the administration would “take the next step, which is to say, ‘This isn’t just policy — it is an international legal obligation’ ” to respect rights wherever in the world American forces are in control of someone.
But Matthew Waxman, a Columbia professor who was a top detainee policy official for the Bush administration, said military and intelligence agencies had been skeptical of taking that step because they worried about potentially complicating their overseas operations.
John Bellinger, the top State Department lawyer in the Bush administration, noted that the presentation comes in the midst of a furor over National Security Agency surveillance. The rights treaty also bars “arbitrary or unlawful interference” with privacy, although it is not clear that it requires parties to respect rights of foreigners not in its custody.
“This is a particularly sensitive time because of the N.S.A. controversy,” he said. “I cannot imagine the U.S. government would change its position, even if it were previously tempted to.”
Under the terms of the rights treaty, a state must respect and ensure rights to people “within its territory and subject to its jurisdiction.” The question is whether to interpret this phrase as describing one group of people or two — those on domestic soil and also those abroad who are subject to its exclusive control.
In 2006, the Bush administration told the United Nations that it applied only domestically. It cited Eleanor Roosevelt, who negotiated the treaty, arguing she proposed adding “its territory” to prevent it from covering the United States in postwar occupied Germany and Japan. Several Obama officials have said they find that argument compelling.
But the Koh memo, citing different wording in an earlier draft and various comments by Mrs. Roosevelt, contended that this misread what happened. It argued her intent was to avoid requiring Congress to enact legislation guaranteeing the rights of people abroad from abuses by others — not to allow American officials to violate them.
Another murky area is whether a shift would require major changes in American policy, or just raise new debates about issues like how the treaties interact with the laws of war. The treaties have no enforcement mechanisms, but can provide fodder for critics seeking to shame a country over its practices.
The Koh memo argued that very little about American policy would need to change. Still, Gabor Rona of Human Rights First questioned whether the practice of holding terrorism suspects without judicial review in Afghanistan and aboard ships would comport with the treaty.
But Beth van Schaack, a former State Department official who wrote a law review article on the issue, argued that the Obama administration had decent legal arguments in support of its policies and need not also argue that its human rights treaty obligations stop at its shores. “It’s a loser’s argument that we should let go, in order to be able to focus on arguments that have much more traction,” she said.