18 Apr, 2009 - Cafe Sentido
J.E. Robertson
The UN rapporteur on torture responded to the announcement by US pres. Barack Obama that CIA agents who engaged in practices the Justice Dept. had authorized as legal would not be prosecuted by saying that such an amnesty would violate US treaty obligations under international law. Manfred Nowak told the Austrian newspaper Der Standard that any acts of torture must be investigated and those involved prosecuted.
Amid the furore over revelations about torture authorized by the Bush administration, some human rights advocates have argued that there should be no attempt to “turn the page” and that if administration officials who sanctioned torture or agents who committed the acts have a defense, the courts exist precisely so that legal defense can be tested.
Nowak noted specifically that “The United States, like all other states that are part of the U.N. convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court”. The memos released this week are considered by many to be evidence of a criminal conspiracy and there is some pressure in the US to appoint a special prosecutor to investigate further.
The US roundly rejected the “just following orders” argument at the Nuremburg trials, which helped establish, in part, the precedent in international justice that certain war crimes are unlawful no matter what any sovereign state may claim. It has also been noted that one of the techniques used, simulated drowning known as “waterboarding”, was prosecuted by the US against Japanese agents after WWII.
Among the revelations that have emerged from the four Justice Dept. memos released this week is the implication that waterboarding was used far more widely than initially claimed by Pres. Bush, when he first admitted to authorizing it, and that for several years there were no guidelines whatsoever to how it should be applied or to limit the potential traumatic effect (a claim that had been a key part of the Bush administration's arguments that its actions were not technically torture).
Obama has spoken passionately against the use of torture and moved swiftly to ban any future incidence of its use, signing an executive order banning abusive interrogations on his second day in office. But he has been unwilling to commit to prosecuting officials who “acted on good faith”, having been instructed that specific acts were in fact legal.
As the legal arguments involved in the memos are widely considered by law scholars to be hollow, or to rely on the claim (already rejected by the Supreme Court) that the president has indivisible authority to reject or override any law in times of war, it has been observed that the memos appear to argue that the techniques described are legal because the government will not apply any relevant laws to those situations where they are practiced.
This, of course, is not a legal argument per se, but a circular argument based on and in support of efforts to circumvent the law. Human rights groups have repeatedly argued, as has the ACLU, and various US judges who have heard related cases, that such circular reasoning is evidence of a deliberate effort to circumvent existing laws.
It is on these grounds that the Spanish judge Baltasar Garzón was asked by prosecutors to consider an indictment against six former US officials who served under the presidency of George W. Bush and were involved in the shaping of “enhanced interrogation” techniques. Garzón will be removed, because he is also hearing a case against one of the alleged victims of those techniques, but the prosecution is expected to continue.
Nowak, the UN's special rapporteur on torture, also noted that if the US does not pass laws precluding the prosecution of individuals involved in torture, US prosecutors would be within their authority to bring cases and judges would be able to rule on the merits of the cases. Nowak's comments may win Obama favor among some supporters of Bush's policies, but their meaning may also give Obama cover, should US prosecutors find their way to a case linked to alleged torture.
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