President Obama's record on torture

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Article 3 of the Torture Convention states, “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Under Article 4 the Torture Convention also applies to “an act by any person which constitutes complicity or participation in torture.”

The UN has released three damning reports detailing torture and abuse in Afghan facilities over the last 18 months. In October 2011, the UN released a report stating, “UNAMA’s [United Nations Assistance Mission in Afghanistan] detention observation found compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS [National Directorate of Security] detention experienced interrogation techniques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.”

For its most recent report, published earlier this month, the UNAMA interviewed 79 detainees who were transferred to detention facilities by international forces. According to the report, “UNAMA found sufficiently reliable and credible evidence that 25 of the 79 detainees (31 percent) transferred by international forces experienced torture in NDS, ANP or ANA facilities.”

A story in the Washington Post from October 2011 alleges the State Department, the CIA, and the U.S. military were aware of the use of torture on detainees in Afghanistan. The story goes on to say, “Despite the warnings, the United States continued to transfer detainees to Afghan intelligence service custody, the officials said. Even as other countries stopped handing over detainees to problematic facilities, the U.S. government did not.”

Between the Washington Post’s report and the UNAMA reports, it is clear U.S. officials have been aware of torture at Afghan facilities. Despite repeated warnings and multiple publicly accessible reports, the U.S. has continued to enter detainees into Afghan detention facilities. Knowledge of torture at Afghan detention facilities makes every single rendition of non-Afghans to said facilities a violation of the Torture Convention. Detaining Afghans and knowingly entering them into detention facilities in which systematic torture is perpetrated amounts to nothing short of complicity in the torture.

With this knowledge, President Obama, as Commander-in-Chief, is responsible for the continued violations of the Torture Convention due to his failure to halt the practice of entering detainees into these facilities. With this in mind, I can’t help but recall President Obama’s granting of immunity to President Bush and Vice-President Cheney.

In April 2009, The New York Times reported that waterboarding was used 266 times on two detainees, Abu Zubaydah and Khalid Shaikh Mohammed. President Bush and Vice-President Cheney have admitted to authorizing the use of waterboarding and both have said they would do it again. In 1947, the U.S. charged a Japanese officer with war crimes for the use of waterboarding. And following a 2011 Republican primary debate, President Obama explicitly stated, “Waterboarding is torture.”

This statement alone puts President Obama in violation of the Torture Convention. Article 6 (1) states, “Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offense referred to in article 4 (torture, attempt to commit torture, complicity or participation in torture) is present, shall take him into custody or take other legal measures to ensure his presence.”

When President Obama entered into the office of the presidency, he became obligated as the head of state to detain Bush and Cheney for their alleged crimes but chose not to. Is it possible that President Obama chose “to look forward as opposed to looking backwards” out of fear that he might break a few laws (see above and add drones program) during his presidency?

Bachman is a professor of human rights at American University, with a focus in state responsibility for violations of international human rights and humanitarian law.