By R. Jeffrey Smith Washington Post Staff Writer Tuesday, September 8, 2009
From 2003 to 2006, the Bush administration quietly tried to relax the draft language of a treaty meant to bar and punish 'enforced disappearances' so that those overseeing the CIA's secret prison system would not be criminally prosecuted under its provisions, according to former officials and hundreds of pages of documents recently declassified by the State Department.
The aim of the global treaty, long supported by the United States, was to end official kidnappings, detentions and killings like those that plagued Latin America in the 1970s and 1980s, and that allegedly still occur in Russia, China, Iran, Colombia, Sri Lanka and elsewhere. But the documents suggest that initial U.S. support for the negotiations collided head-on with the then-undisclosed goal of seizing suspected terrorists anywhere in the world for questioning by CIA interrogators or indefinite detention by the U.S. military at foreign sites.
Instead of embracing a far-reaching ban on arrests, detentions and abductions of people without disclosing their fate or whereabouts or ensuring 'the protection of the law,' the United States pressed in 2004 for a more limited prohibition on intentionally placing detainees outside legal protections for 'a prolonged period of time.' At the time, the CIA was secretly holding about a dozen prisoners.
Foreign governments criticized the U.S.-preferred wording, calling it vague and saying that proving intent would be hard and should not be necessary.
In the end, the Bush administration declined to endorse the treaty's broadly worded ban, which at least 81 countries have now signed, including all members of the European Union and many nations with checkered human rights records, such as Algeria, Argentina, Cuba and Guatemala.
A White House official said the Obama administration is reviewing the previous U.S. stance on the treaty as part of a wider look at international human rights accords that Washington has not signed. The official did not say when a decision might be made.
The administration has already reversed its predecessor's decision to shun the U.N. Human Rights Council, which is monitoring the treaty's implementation. But it has also said it will retain the ability to capture and transfer suspects to third countries, a practice known as rendition, while stressing that it will not do so if detainees are at risk of torture.
The documents detailing U.S. proposals to loosen some of the treaty's key language were released last week in response to a Freedom of Information Act request made by Amnesty International, but many passages were redacted, and the remaining portions make no direct reference to specific CIA or Defense Department objections.
A senior Bush administration policymaker confirmed in an interview last week, however, that the existence of the CIA prisons and the military prison at Guantanamo Bay, Cuba, where the Defense Department has held hundreds of suspected terrorists without initially disclosing their names, was 'a complicating factor' in U.S. deliberations on the treaty.
'Our negotiators were certainly aware that there was this program where people were being held, and were not in touch with people, and they had to be careful to ensure that there was room' for that program to continue, the official said, speaking on the condition of anonymity because of the sensitivity of the deliberations. He added that the treaty's proposed definition of 'enforced disappearances' was only one of several problems Washington had with the draft.
'As with a number of previous human rights treaties, the language was just so broad that . . . we were not going to be able to sign,' he said.
The treaty requires member countries to enact domestic criminal penalties for state-orchestrated disappearances and to compensate victims, but it has not taken legal effect because it has not been ratified by at least 20 nations, the minimum required. That leaves U.N. investigations of such cases in the hands of a five-member group chaired by a South African, which last year sent 1,203 new allegations of enforced disappearances to officials in the 28 countries said to be involved. A total of 42,393 alleged such disappearances in 79 countries remain unresolved by the group, according to its most recent annual report.
The U.N. group complained to the Bush administration last year about reports of the 'enforced disappearance for a certain period of time' of Hassan Mustafa Osama Nasr, also known as Abu Omar, a radical Egyptian cleric who was abducted by the CIA from a Milan street in 2003 and sent to Egypt, where he says he was tortured. When the State Department responded that U.S. policy bars such renditions if torture is anticipated, the U.N. group highlighted the gulf between the global treaty's view of 'intentionality' and the Bush administration's view.
'Intentionality is essentially irrelevant,' the group said in its response to Washington, 'in the sense that any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law, regardless of the pursued purposes.' U.S. negotiators had argued to the contrary in 2006 -- that proving intent is 'an essential ingredient of the crime.'
During the negotiations, China and a few other countries joined the United States in repeatedly attempting to slow the pace of the drafting, citing the complexity of the underlying issues. But a February 2004 State Department cable described the United States as 'isolated' in urging that the text include language allowing those participating in enforced disappearances to be exempt from prosecution if they thought they were following lawful orders.
The documents also spell out how the Bush administration was 'virtually alone' in objecting to a treaty provision stipulating that anyone 'with a legitimate interest,' such as a relative, be given an explanation and accounting of an individual's detention by the government as well as information on the person's whereabouts and health. U.S. negotiators called that provision unacceptable in a 2004 document, saying it 'could impair national security, law enforcement, or privacy interests.'
David Kaye, a State Department lawyer from 1999 to 2002 who directs the International Human Rights Program at UCLA Law School, said after reviewing the documents that 'it's clear that the 'right to know' was at the heart of the effort to draft this new instrument.' In that context, he said, 'the failure to come up with a creative way to solve the American problem with this language plainly looks like the Bush administration objected to the purpose of the treaty itself -- and that our allies roundly rejected the U.S. position.'
He added: 'I think a lot of the 'problems' in the text could be resolved and that the United States should consider joining this treaty.'
Allen Weiner, another former State Department lawyer who is co-director of the Program in International Law at Stanford Law School, similarly said that many of the apparent U.S. concerns were 'solvable' or could have been addressed in legal 'reservations,' whereby the U.S. government spelled out its plans to implement the treaty's language.
The senior Bush administration official noted, however, that Washington's ability to gain concessions from others was undermined by public revelation of the CIA prisons in 2005. 'I doubt that other countries would have been pushing quite so hard on this particular convention at this time were they not trying to cause problems for the administration,' he said.
The context, he said, enabled 'both the Europeans and the Latins' to 'join forces' in arguing against the U.S. proposals."