WASHINGTON — A treaty ban on cruel treatment will restrict how the United States may treat prisoners in certain places abroad, the Obama administration is expected to tell the United Nations on Wednesday, according to officials.
That interpretation would change a disputed Bush administration theory that the cruelty ban does not apply abroad. But the Obama administration also stopped short of an unequivocal acceptance that the ban imposes legal obligations everywhere that American officials have a prisoner in their custody or control, as human rights advocates had urged it to say.
An American delegation will unveil the administration’s position in Geneva on Wednesday in a presentation before the United Nations Committee Against Torture. The panel, which monitors compliance with the United Nations Convention Against Torture, has asked whether the United States still takes the Bush-era view.
Most of the torture treaty contains no geographic limitations. But its ban on “cruel, inhuman or degrading treatment” that falls short of torture is one of several provisions that apply to a state’s conduct “in any territory under its jurisdiction.” That phrase is ambiguous, and the administration of President George W. Bush took the view that the ban did not apply beyond domestic soil.
The Obama administration, after an internal debate that has drawn global scrutiny, is taking the view that the cruelty ban applies wherever the United States exercises governmental authority, according to officials familiar with the deliberations. That definition, they said, includes the military prison at Guantánamo Bay, Cuba, and American-flagged ships and aircraft in international waters and airspace.
But the administration’s definition still appears to exclude places like the former “black site” prisons where the C.I.A. tortured terrorism suspects during the Bush years, as well as American military detention camps in Afghanistan and Iraq during the wars there. Those prisons were on the sovereign territory of other governments; the government of Cuba exercises no control over Guantánamo.
The latest debate began about five weeks ago, when State Department lawyers sent a roughly 70-page memo to the interagency lawyers group proposing that the administration take a broader view of the treaty. But military and intelligence lawyers said that they needed more time to examine whether changing the interpretation of the treaty would affect operations.
Officials emphasized that the debate was not about whether to use torture or “cruel, inhuman or degrading treatment” that falls short of torture. The abuse of prisoners is already barred by domestic statutes and by the Geneva Conventions.
Rather, they said, the debate was a technical matter of interpretation, underlined by concerns that changing the jurisdictional scope could have unintended consequences, like increasing the risk of lawsuits by overseas detainees or making it harder to say that unrelated treaties with similar jurisdictional language did not apply in the same places.
Still, the debate has been fraught with symbolic overtones. After The New York Times reported that the administration was considering whether to accept or reject the Bush-era interpretation, several human rights groups, a group of Nobel Peace Prize laureates, and Harold Koh, the top State Department lawyer in Mr. Obama’s first term, publicly urged rejection of the Bush-era view.
And a group of Democratic senators, Dianne Feinstein, Patrick J. Leahy and Richard J. Durbin, wrote in a joint letter, “It is crucial that the United States signals to the world that we have to put the dark chapter of the Bush administration’s torture program behind us, and are not seen as attempting to leave open the possibility of using so-called enhanced interrogation techniques ever again.”
The administration is also taking a nuanced approach to the related question of whether the Convention Against Torture is displaced by the laws of war in armed conflicts. Its theory, developed for the presentation this week in Geneva, says that both bodies of law apply at the same time to wartime prisons, but if a situation arose in which they clashed, the laws of war would trump because they are more specialized for that situation.
Still, the Geneva Conventions separately require wartime prisoners to be treated humanely.
The Bush administration unveiled its narrow geographic interpretation of the treaty’s cruelty ban in 2005, amid the fallout from the Abu Ghraib scandal and the leaking of memos permitting the C.I.A. to use waterboarding and other torture techniques. It dovetailed with others ways the Bush legal team interpreted anti-torture laws narrowly and also claimed that a president’s wartime powers could trump them.
The disclosure prompted bipartisan outrage, and Senator John McCain, Republican of Arizona, proposed a bill to close the legal loophole and make clear that the cruelty ban applied everywhere. During the debate over that legislation in 2005, Barack Obama, a senator at the time, endorsed the view that Mr. McCain’s bill merely echoed “existing obligations” under the treaty.