Legal Commentary

AP: Obama Team Debating Violating UN Convention On Torture

By Big Tent Democrat

The other day, the AP reported:

President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials familiar with drafts of the plans. Still under debate is whether to allow exceptions in extraordinary cases.

. . . Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

As Glenn Greenwald points out, such a "loophole" would constitute a violation of the UN Convention on Torture, codified as a crime under US law:

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

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. . . .

Article 4

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.

Article 7

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.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

If the AP is correct in its story, the incoming Obama Administration is contemplating committing crimes under US and international law. If this is what Obama plans to do, may I recommend that he first withdraw the United States from the UN Convention on Torture and ask for the repeal of US law that codified the Convention. Thus, while Obama may be engaged in barborous actions, at least he will not be commiting a crime under US law.

Oh by the way, I think outgoing CIA Director Michael Hayden may had confessed to committing crimes (joining Dick Cheney on this):

These techniques worked," Hayden said of the agency's interrogation program during a farewell session with reporters who cover the CIA. "One needs to be very careful" about eliminating CIA authorities, he said, because "if you create barriers to doing things . . . there's no wink, no nod, no secret handshake. We won't do it."

To remind Hayden of the relevant language:

Article 2

. . . 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .

Speaking for me only

Full post as published by TalkLeft on January 18, 2009 (boomark / email).