Monday, April 20

UN to Obama: Failure to Prosecute Torture is Illegal

Rahm Emmanuel on This Week: "This is not a time for Retribution or Anger"

Via Thinkprogress

The UN Special Rapporteur stated in a recent interview with Australia's Der Standard

STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?

NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.


Despite what Rahm or Obama says, this is not about "Retribution or Anger" it's simply about Justice and the Law.

STANDARD: In other words, by making this announcement, Obama has violated international law?

NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.

The UN Convention Against Torture, which was signed by Ronald Reagan and ratified by a Republican Congress in 1995 says this.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.

No exceptions, in plain English means - NO EXCEPTIONS.

This is the Law, ignorance of the Law - is NO EXCUSE!

This is something that someone really needs to tell GOP Torture shills like Frank Gaffney

Despite what Frank says the fact is that the Geneva Conventions and the UN Convention Against Tortue aren't just some irrelevant "International Law" that has nopower within the sovereign United States. These are Treaties that WE SIGNED and Ratified and as such have the full force and binding aspect of our own Constitution as noted under Hamdan v Rumsfeld (pdf).

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

These treaties are executed under U.S. law as 18 USC 2340 (Torture) and 18 USC 2441 (War Crimes).

Nothing in these statutes says the U.S. should only prosecute "when it's politically convenient" - in fact, I suspect Obama's open refusal to persue these charges may have left himself and A.G. Holder vulnerable to legal action by those who have been tortured under U.S. policy or their surviving families.

Suites like those already in progress against Donald Rumsfeld.

Oct. 27, 2004 – Four men, who were formerly detained at the US detention center in Guantanamo Bay, filed a lawsuit today against numerous pentagon officials, including Secretary of Defense Donald Rumsfeld, for allegedly authorizing torture and other human rights violations during their detention.

The plaintiffs, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith -- all British citizens -- claim they were arbitrarily detained and suffered abuse and mistreatment while in US custody. They are each seeking $10 million in damages from those responsible in their individual capacities. This is the first case of its kind.

Chances are, it won't be the last.

There is also a compelling argument to made that as signatories to these treaties we are Obligated to oblige by Universal Jurisdiction (a concept that has already been employed by These states include: Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States.)

"All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those which are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law."[10]

So, yes, Frank - Spain can prosecute Americans for Torture, even if Obama doesn't.

Oddly enough one of the few people whose got this issue right - except for his desire to keep the truth hidden so that America won't be "embarrassed" - is John McCain.

The arguement that tools such as Waterboarding are "neccesary and effective" is done and over - something isn't effective when you have to do it 183 times to get results. The CIA says that got "good information", the FBI (who had to go out and verify that info says they didn't - I trust the FBI on this one, since the same CIA said Saddam had mobile WMD labs! (A false allegation that also came about via Torture)

We have to come to realize that prosecuting criminals, especially War Criminals, is not "vindictive" - it's our responsibility as a civilized nation - if we fail at that, we fail as a society and force the hand of others to do what needs to be done.


Update: There is some dispute as to whether or not the UN Conventions would override Prosecutorial Descretion since they were not Self-Executing and Congress choose to ignore the automatic provisions. I think that's a fair debate to have. Would the courts really reject a Civil Suit like the one I suggest (considering the fact they have already accept several including Hamdan, Hamdi and Boumedine already?) if it's sole purpose was primarily to argue that the failure to investigate and prosecute would be a clear violation of treaty obligations or would this have to be addressed in a Foreign Court (like Spain) or International Tribunal such as the Hague?

One other point I want to make is that Obama's argument against prosecution doesn't really follow the U.S. or the DOJ's own guidelines. He absolutely does have "credible evidence" that War Crimes took place, most of the arguments put forth in the Bybee/Yoo memos have been roundly defeated by the SCOTUS - and there are various memos, particularly those from then White House Counsel Gonzales that indicates willful knowledge that these policies may have been in violation of 18 USC 2441, and thereofore subsequent arguements were made to subvert the law such as President Bush's baseless claims that Geneva didn't apply to Al Qeada, when it clearly did and still does.
Obama's choosing not to prosecute for political reasons, not criminal ones.

Obama's choosing not to prosecute for political reasons, not criminal ones.

Obama speaking today at CIA!

Not a very inspiring speech IMO. It doesn't matter whether our Enemies are constrained by the "Rule of Law" or not - WE ARE! It might be true that the AG has prosecutorial descretion not to persue these charges based on a reasonable legal analysis, but does the President have the ability to block an thorough investigation for Politics?

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