Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

89. Action Memorandum From the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Schifter), the Legal Adviser of the Department of State (Sofaer), and the Assistant Secretary of State for International Organization Affairs (Keyes) to the Deputy Secretary of State (Whitehead)¹

Washington, February 5, 1987

SUBJECT

• Torture Convention: Differences with the Department of Justice

ISSUE FOR DECISION

Whether to convene a meeting of high-level State and Justice Department officials to attempt to obtain Justice Department support for U.S. signature and ratification of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Torture Convention).

ESSENTIAL FACTORS

In our previous memorandum of December 24, we detailed the preliminary objections to the Torture Convention that have been raised by Justice Department officials.² We appreciate your offer in response to call Attorney General Meese or Deputy Attorney General Burns to solicit their support for U.S. signature and ratification of the Convention. While such a call would undoubtedly be helpful, we believe an even more effective means of gaining Justice Department support for the Convention would be for you to convene a meeting of high-level officials from Justice and State.

We believe the Torture Convention merits such high-level attention. The practice of torture is abhorrent, and the United States should do everything in its power to bring it to an end. While recognizing that it may be difficult for the United States to prosecute those accused of torture abroad, we nonetheless believe that the threat of prosecution will deter some torturers and will prevent the United States from becoming a haven for torturers. Moreover, we are constantly under fire from the Soviet bloc for our failure to ratify human rights conventions. The Convention offers a concrete opportunity to demonstrate that the United States is prepared to sign on to such instruments when they are of sufficient value.

The Justice Department objections expressed so far reflect a fundamental disagreement with us over the value of U.S. ratification of the Convention and an underlying pessimism about the Administration’s ability to get the necessary declarations, understandings and reservations from the new Democratic Senate. These are essentially political, and not technical legal, judgments. We need to find out now whether the highest political levels at Justice agree or can be persuaded to agree that the U.S. should move forward with the Convention and are willing to direct their subordinates to review the Department of State package expeditiously and in that spirit. If we cannot obtain political support at Justice, we will be resigning ourselves to letting the Convention languish in the Justice Department bureaucracy for the rest of this Administration. A high-level meeting would allow us to demonstrate to Justice the priority that we place on signature and ratification of the Convention.

If you are able and willing to host a meeting, we would propose that the participants from the Justice Department include: Deputy Attorney General Burns, Associate Attorney General Steve Trott, Assistant Attorney General for the Criminal Division William Weld and Deputy Assistant Attorney General, Victoria Toensing. The State participants, besides yourself, would be Ambassador Schifter, Judge Sofaer and Ambassador Keyes.

We have prepared the attached talking points³ for your use in a meeting. Also attached is a background memorandum⁴ detailing our responses to the Justice Department objections raised thus far.

RECOMMENDATION

That you convene a meeting of high-level State and Justice Department officials to attempt to reach agreement that the Executive Branch should seek signature and ratification of the Torture Convention.⁵

1. Source: Department of State, Subject Files, Human Rights Files, 1987, Lot 89D186, PREL UNHRC TORTURE 1987. Unclassified. Drafted by McLeod and cleared in L, HA, and IO.
2. Not found.
3. Undated, attached but not printed.
4. Undated, attached but not printed.
5. There is no indication of approval or disapproval of the recommendation. In an August 8 memorandum to Farrand and Dobriansky, Schifter stated: “I brought the Secretary up to date on our problem concerning the Justice Department position on the Torture Convention. He said that Abe Sofaer usually can resolve matters of this kind with the Justice Department and asked me whether I had discussed it with him. I told him that Abe was indeed involved and had struck out. I added that John Whitehead is now looking into the matter. If he fails, I explained, we need to go to the NSC.” (Department of State, Correspondence File—Ambassador Richard Schifter CHRON and Subject Files, 1984–1991, Lot 94D411, R. Schifter’s Monthly Chron—August 1987)