In The Arena Memo to the President: Say Yes to the Torture Ban

Harold Hongju Koh, Sterling professor of international law at Yale, served as legal adviser to the U.S. State Department from 2009-13.

TO: President Barack Obama

FROM: Harold Hongju Koh

You face a decision that will help define your legacy as president.


This month presents many choices about the mark you will leave on America’s history and laws. One such choice will enshrine your legacy on one of the issues that most mattered to you when you first campaigned for president.

Next week in Geneva, officials from your administration will inform an international committee of experts whether our country respects a global ban on torture and cruel treatment, the Convention Against Torture (CAT), which we ratified 20 years ago. Those experts, the Committee Against Torture, will surely ask the U.S. delegation: “Will the United States abide by the universal treaty ban on torture and cruel treatment in armed conflict or beyond United States borders, including Bagram and Guantánamo?”

You can follow the last administration and give a qualified “ compromise” answer, which would leave purposefully ambiguous whether the U.S. considers those practices illegal, not just ill-advised. Or you can secure your legacy—without any legislation or an executive order—by instructing your delegation simply to answer “yes.” A straightforward “yes” would reaffirm your presidency’s unequivocal rejection of torture and cruel treatment as illegal tools of American power.

This shouldn’t be a tough decision. Great nations should not waffle on such matters of principle. And you have already spoken out on this issue.

As a senator in 2005, you joined a bipartisan group—led by your future presidential rival John McCain—supporting legislation that unambiguously prohibited U.S. personnel from subjecting any individual in their “physical control” to cruel treatment “regardless of nationality or physical location.” In so doing, you told the Senate that that law “acknowledges and confirms existing obligations” under the Convention Against Torture. While running for president, you said, “We are going to lead by example, by maintaining the highest standards of civil liberties and human rights, which is why I will … say no to torture.” On your third day as president, you issued an executive order that reinforced the ban on torture and required U.S. personnel to treat humanely all persons in U.S. custody or “effective control,” wherever located.

By agreeing that international law also bans official cruelty abroad, you would simply affirm the status quo ante. U.S. courts and the Committee Against Torture have opined that even if there were no Convention Against Torture, torture and cruel treatment are prohibited under customary international law. When former judge Abe Sofaer, the State Department’s legal adviser under Presidents Reagan and George H.W. Bush, first presented the Torture Convention to the Senate for ratification in 1990, he never suggested that any of its provisions were territorially limited. When I represented the Clinton administration before the Committee Against Torture in 2000, I stated that “as a country we are unalterably committed to a world without torture. … No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture,” anywhere, not just on U.S. soil. When the George W. Bush Justice Department claimed in a 2005 memo that the anti-cruelty provision of the treaty (Article 16) was territorially limited, Judge Sofaer rejected that claim, because “[r]estricting enforcement of [that article] to U.S. territory” “would fundamentally undermine the treaty’s purpose of requiring every State to undertake to prevent all ‘cruel, inhuman or degrading’ treatment by any State in any territory under its ‘jurisdiction.’”

Yet despite this history, in 2006, Bush administration officials walked back this promise. They told the Committee Against Torture that four provisions of the treaty “are geographically limited to [the U.S.’s] own . . . territory.” Translation: These protections do not apply to the treatment of individuals held by the U.S. in other parts of the world. While serving as your State Department’s legal adviser, I examined the Bush administration claim in detail and left behind a 90-page memo explaining that, in my legal opinion, U.S. policy makers cannot plausibly claim that the torture treaty does not apply abroad or in armed conflict. Our research (see page 43) showed that before the secret 2005 Justice Department memo—which your administration later revoked—no U.S. official had claimed a loophole to the treaty permitting extraterritorial cruelty.

Recently, a dozen of your fellow Nobel Peace Prize laureates urged you to reaffirm the unequivocal ban on cruelty. Yet the press has reported that your lawyers continue to debate both the territorial reach of the Torture Convention and its relevance in armed conflict. Apparently, some have suggested that acknowledging that the CAT applies abroad will force us to admit that many other ratified treaties do so as well. But as a constitutional lawyer, you know well that the territorial scope of each ratified treaty must be evaluated on its own terms, history, and object and purpose. Our domestic law already forbids U.S. officials from committing torture, cruel, inhuman or degrading treatment, or administering cruel and unusual punishments. We would reinforce this legal obligation in Geneva by forthrightly acknowledging that it is also illegal for the United States and any other country to do so under international law. If we do not close the legal door on extraterritorial cruelty, other countries—or future U.S. administrations—could cite the same treaty language to claim that they may abuse those whom they hold on foreign soil.

Similarly implausible is the claim that the treaty simply does not apply in armed conflict. If that were so, the Torture Convention would not bar our torturing Al Qaeda detainees during armed conflict. Abu Ghraib graphically demonstrated the costs of such extraterritorial cruelty. Still others reportedly fear that abandoning the Bush administration’s treaty interpretation could inhibit our military operations abroad. But you have already forbidden cruel and inhumane treatment of detainees under domestic law and the laws of war bar such conduct wholly independent of the Torture Convention. If such conduct were not already illegal, our allies would insist upon such a ban as their price for working with us on joint military operations that involve detaining overseas prisoners. And even if logistical challenges should arise, when you accepted the Nobel Peace Prize, you told us that you had “prohibited torture” because “we honor [our] ideals by upholding them not when it’s easy, but when it is hard.”

What, then, is really at stake? America’s moral leadership. Our commitment to values as part of our national interest. Our smart power. Our claim to be a nation uniquely founded on an unshakeable commitment to protecting fundamental human rights anywhere in the world. If you instruct your subordinates to equivocate in Geneva, you will make us less exceptional and more like those countries who deride and challenge our global leadership.

As you said about Guantánamo in your May 2013 speech at the National Defense University, “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.... Look at the current situation …. Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.” In the same way, creating loopholes to use cruel treatment abroad is not who we are. Our sense of justice—and yours—is stronger than that.

Mr. President, you still have time to secure your legacy on this issue. When the experts in Geneva ask us, “does America renounce the use of torture and cruel treatment outside its borders or in armed conflict?,” you should instruct your team to answer with an unqualified “yes.”