The U.S. Justice Department issued a report on February 19, 2010 finding that the lawyers who drafted “the torture memos” in the Bush administration were not guilty of professional misconduct. According to the New York Times,
After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.
The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.
The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.
Eric Lichtblau and Scott Shane, New York Times, February 20, 2009
Under the U.N. Convention Against Torture and and Other Cruel, Inhuman or Degrading Punishment or Treatment, the United States, which is a party to the treaty, is obligated to prosecute or extradite individuals found within its jurisdiction who evidence suggests are guillty of torture.
Torture is defined in Art. 1(1) of the Convention as:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
There are no exceptions to the prohibition against torture, and superior orders are no excuse. Art. 2(2) and Art. 2(3) provide:
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Each party is obligated under Article 4 to ensure that acts of torture as defined in the convention are crimes under its domestic law, as follows:
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
The obligations to arrest, investigate and prosecute or extradite to another party are clearly established in the Convention.
Article 5 sets forth the obligations of a party such as the United States to prosecute individuals for torture when the crimes were committed within its territory or by its nationals:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(1) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(2) When the alleged offender is a national of that State;
The authority and obligation of other countries who are parties to the Convention to arrest and prosecute or extradite individuals who may be guilty of torture are set forth in Arts. 6 and 7, in the following terms:
1. 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 offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence….
2. Such State shall immediately make a preliminary inquiry into the facts.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
While President Barack Obama has ordered an end to torture on his watch, his actions in the area of bringing to justice those who may have violated the Torture Convention have been disappointing.
Obama has not separated from government service those who it has been acknowledged played a significant role in the torture program.
Obama’s Secretary of Defense, Robert Gates, has issued an overly broad directive banning the release to the public of any photograph relating to the commission of torture by U.S. officials from September 11, 2001 through January 22, 2009.
Now, the Justice Department internal review of the conduct of the lawyers who wrote and approved the “torture memos” has concluded, in what the New York Times described as the Department’s “final judgment”, that these individuals were not guilty of “professional misconduct” and that the corresponding legal opinions were “flawed but not grossly incompetent or unethical”.
To be sure, Attorney General Eric H. Holder, Jr. opened a criminal investigation—finally–in August, 2009 to determine whether the CIA interrogation program broke the law. According to the New York Times, quoted above, “that investigation is expected to continue for many months.”
When Chickens Come Home to Roost
Justice indefinitely delayed amounts to justice denied.
To avoid this result, the U.N. Convention Against Torture provides for arrest and prosecution by other Parties when the country with the primary responsibility fails to prosecute as required by the Convention.
Up until now, parties to the Convention have given the United States considerable leeway in dealing with apparent violations of the Convention by officials during the George W. Bush administration (2001-2009), for offenses that happened as long as seven to or eight years ago.
They have shown continuing forbearance in granting Obama time to investigate and prosecute those responsible for violations of the treaty. When it becomes clear to them that the president has no intention to prosecute these individuals, however, this forbearance could suddenly come to an end, at least in the mind of a prosecutor or an investigating magistrate in one or another country that is a party to the Convention.
At a minimum, the President should seek an opinion from the Legal Adviser at the State Department regarding the international legal obligations of the United States under the Torture Convention to prosecute those individuals responsible for violating the Convention’s prohibitions, and make that opinion public.
Moreover, he should instruct Attorney General Holder to broaden his inquiry beyond the CIA to include all government officials—not just CIA officials–who might have been guilty of violating the Convention and who the United States is obligated to prosecute under its terms.
Congress should hold monthly or at least quarterly hearings requiring the attendance of Attorney General Holder and full reporting by the Justice Department of the activities it has undertaken in its investigation(s) into the possible commission of torture or related crimes, the remaining steps to be undertaken by the Justice Department, and when the report and indictments where appropriate might be expected.
Some Obama supporters will argue that his administration should drag the investigation out, at least past the November 2010 elections. This may in fact be prudent and justifiable if such action is supported by legal and not merely political considerations. However, it will not be possible to drag the investigation out past the presidential elections in 2012.
The Clock is Ticking
If Obama does not get out in front of this issue, he could be thrown into a politically disastrous position if and when the judiciary of another country that is a party to the Convention arrests or issues an arrest warrant for an individual wanted for prosecution under the terms of the Convention.
The President should act now to avoid this eventuality.
Torture will not be done with him, or with us, until we are all done with torture.
The Trenchant Observer
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