Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

U.N. Rapporteur on Obama Amnesty for CIA Agents

By Jack M. Balkin

The following interview with Prof. Manfred Nowak, U.N. Rapporteur for Torture, appears in the print edition of today's DER STANDARD (Vienna). I have rendered the interview into English.

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. This would be the same for Austria: we could not simply, or not without violating the Convention, say "but for certain instances of torture we have decided to make an exception, there will be no prosecutions."
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.
STANDARD: Are the CIA operatives who used torture not in fact protected from criminal prosecution?
Nowak: I don?t believe that it?s Obama?s intention to go so far as to issue an amnesty law. He is making a political announcement, saying that we are drawing a clean line. For instance, U.S. prosecutors and courts could still take up torture cases, notwithstanding this statement. And secondly, there is the possibility that criminal proceedings will go forward in other states, for instance, in Spain.
STANDARD: The memos just released argue that the techniques used are in conformity with legal guidelines.
Nowak: These so-called torture memoranda are nothing more than efforts to reinterpret the definition of torture, which is clearly defined in the UN Convention. We have repeatedly noted that these memos are of course a violation of international law.
STANDARD: How do you think the new U.S. administration should proceed with this matter?
Nowak: Most importantly, there should be a comprehensive investigation undertaken by an independent body. Whether by a special investigatory commission created by Congress or by a special investigator?there are different approaches. But it is quite important that the victims receive compensation. That can be measures taken for rehabilitation, residence permits, and other approaches. Finally this should be offered to the victims by the government, but it should also be something that can be obtained through access to the court system. Then there must be a criminal justice path: there must be a search for evidence which inculpates individuals. That could be individual torturers or those in the chain of command, who directed the process. But that is a question which should be approached only after a comprehensive investigation.

Full post as published by Balkinization on April 18, 2009 (boomark / email).