Editore"s Note
Tilting at Windmills

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January 15, 2009
By: Hilzoy

Some Facts For Obama To Consider

(1) According to Article II, Section 3 of the Constitution, the President "shall take Care that the Laws be faithfully executed".

(2) According to Article VI of the Constitution, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land".

(3) The United States is a party to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

(4) As Dahlia Lithwick reminds us, the Convention Against Torture not only prohibits torture, it imposes a set of affirmative obligations on its parties. Specifically, Article 6 states:

"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 [ed.: acts of torture] is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts."

Article 7:

1. The State Party in the 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.

And Article 12:

"Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."

(5) None of the Objections entered by the United States at the time of ratification seem to affect the affirmative obligation to investigate and prosecute cases in which there is reasonable ground to believe that an act of torture has been committed.

It seems to me that these facts imply that if Barack Obama, or his administration, has reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.


Another bit of the Convention Against Torture is relevant to the question whether we should construct a new legal system to deal with Guantanamo detainees. 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.

Whatever Obama decides to do about the fact that detainees were tortured, admitting claims they made as a result of torture as evidence is not an option.

Hilzoy 1:00 AM Permalink | Trackbacks | Comments (26)

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Engaging the law is Mr. Obama's "speciality" (sorry; the kids spent the evening watching Wallace and Gromit videos), so wondering whether he'll do the right thing will hopefully be anticlimactic---unless you're busy working on your Rush Limbaugh stand-up-comedy-impersonator routine.

Speaking of which---wouldn't the willful encouragement and justification of an illegal act, to the point of inflicting a high degree of psychological coercion toward the physical commission of said act by intentionally making knowingly-false representations, be construed as tacit participation in the act's commission?

Posted by: Steve W. on January 15, 2009 at 2:16 AM | PERMALINK

Obama has demonstrated his poise during the campaign and, unlike Bush, being a constitutional expert, he must be aware of what the constitution requires him to do once he becomes acting president. It is this poise and his dedicated motivation that leads me to believe he is probably thinking right action at the appropriate time but no need to prematurely put everyone on the defensive and stir up unnecessary opposition before he can act. A time for celebration and a time to prosecute.

Yet he needs to know how strongly his supporters believe in this 'right action' by the pressure we continually put on him to make sure there are consequences for the horrendous acts of the Bush administration.

Right now we got Harry Reid chanting his support for Israel's terrorist activities being done without witnesses or press present to record it as totally justified with very little knowledge of the whole situation but just succumbing to lobbyists pressure because the American People poll completely opposite Harry's opinions or congress' for that matter but when did they ever listen to the people first before shouting their opinions.Obama is acting shrewdly if he is thinking 'every thing in its own time' with all the lawlessness surrounding his soon to be office and most of it with the full complicity of democratic leaders in the senate. Still it is up to us to make sure he's paying attention.

btw...torture has been used for centuries to extract confessions from innocent people to protect the real perpetrators who are doing the torturing to protect themselves. After all the military propaganda spouted across the TV mews and the MSM the last 8yrs...why would anyone assume the military is credible or believe any of their so called "findings". Bush/Cheney have lied about everything and so have their supporters. Obama must know there is only one way to restore integrity to the US government now yet he must also know he has to be extremely tactful and cautious in doing it.

Posted by: bjobotts on January 15, 2009 at 2:33 AM | PERMALINK

Steve B -
Article 4 of the Convention Against Torture and Other, Cruel, Inhuman and Degrading Treatment, states : 'any act by any person which constitutes complicity or participation in torture' is also to be treated as a criminal offense.

This means that high officials and their legal counsel who sanctioned and facillitated torture are deemed as culpable as those who actually tortured. According to one senior Prosecutor at the Hague: both the high official who approved, "and the lawyer who gives such legal advice is not treated as an accomplice, it is as though he is the author of the act." (Torture Team, Philippe Sands)

The law is actually quite clear. The enforcement mechanisms are sadly considerably less so.

Posted by: DanJoaquinOz on January 15, 2009 at 2:56 AM | PERMALINK

Please keep this pressure on. What you do here is excellent. Accountability on all aspects of Constitutional violation is essential to restore health and dignity to the country. Thanks.

Posted by: Goldilocks on January 15, 2009 at 3:24 AM | PERMALINK

Excellent summation.

Posted by: low-tech cyclist on January 15, 2009 at 4:43 AM | PERMALINK

Blair, Bush, Cheney, Rumsfeld, Wolfowitz, and their selective enablers, should all be in jail, and facing crimes against humanity charges.

That's not going to happen, of course. But it does make any attempts at bringing other war criminals to justice that much harder, when the West flouts international law.

BTW - one day the UK Attorney General Goldsmith will tell us the whole story as to how he was forced to go jumping jack on the UN resolutions that were jiggered to provide justification for the illegal invasion; without the UN actually making that decision.
Goldsmith was forced by Blair to dig up pretexts that would justify the reactivation of the resolution enabling Desert Storm, in a tortuous legal argument that had international law experts laughing with disbelief. But Blair and Bush didn't care.
Blair outright lied to Goldsmith, in order to have him invoke the imminent threat clause. This is why they were all so desperate post-invasion to find some justification for imminent threat, and why they spent so much time obfuscating the issue (WMD having been shipped to Syria, etc.)
And it is why the Wilson/Plame affair created absolute panic in the Cheney White House - if the US press had understood what was going on, then Bush/Cheney would not have been reelected in 2004, and we would have had a different world today.

That's politics.

Posted by: SteinL on January 15, 2009 at 6:53 AM | PERMALINK

We are at war with a vicious enemy who hates us for our freedoms. We have to protect our way of life.

Posted by: Al on January 15, 2009 at 7:17 AM | PERMALINK

I think we need to look forward, not backward, and solve the current problems together, as opposed to assigning blame.


Posted by: Blue Texan on January 15, 2009 at 7:31 AM | PERMALINK

In his interview with Larry King, Bush said, ". . . And I got legal opinions that said whatever we're going to do is legal. And my job is to protect you, Larry. And I've given it my all. I've given it my all."

When is someone going to remind him to his face, on the air, that his job is not to "protect us," but to "protect the Constitution"?

Posted by: Hokuto on January 15, 2009 at 7:34 AM | PERMALINK

Well said, hilzoy. I hope Obama is just playing his cards close to the chest in order to create a sense of security among the criminals in the Bush Administration and Congress, preventing any last-minute pardons. (Although, of course, a pardon would remove Fifth Amendment protection...)

Once Obama is at the helm, and Bush can no longer pardon anyone, I hope that Obama does the right thing (obliged to launch an investigation -- hmmm, special prosecutor, anyone?). If so, he can point to your excellent post here and respond to the inevitable screeching of the jingosphere and the Villagers that he's legally fucking obligated to investigate and prosecute the Bush Administration's war crimes.

As an aside, I used to at least presume that conservatives' objection to international criminal courts had at least something to do with the fact that the US would not make commiting war crimes policy, and would prosecute her citizens who committed such crimes on her own. Sadly, the Bush Administration has convinced me that in this area, too, movement conservatives generally were not arguing in good faith.

Posted by: Gregory on January 15, 2009 at 7:41 AM | PERMALINK

his job is not to "protect us," but to "protect the Constitution"?

Really? Is that the argument you want to make? I would hope it is his job to protect both. I would also hope that in that fictional "ticking timebomb scenario", we would say the Constitution is not perfect. What seems clear, though, is that Bush has abused the power to rationalize.

Posted by: Danp on January 15, 2009 at 8:01 AM | PERMALINK

We are at war with a vicious enemy who hates us for our freedoms. We have to protect our way of life.

Don't worry -- Cheney steps down next week, eliminating that threat.

Posted by: Davis X. Machina on January 15, 2009 at 8:08 AM | PERMALINK

and now..

the definition of moral relativism...

Al: We are at war with a vicious enemy who hates us for our freedoms. We have to protect our way of life.

Posted by: mr. irony on January 15, 2009 at 8:18 AM | PERMALINK

"What seems clear, though, is that Bush has abused the power to rationalize." - Danp

This is the real damage. From the beginning, Bush in very deliberate fashion set off a domino effect of rationalizing, dismissing, excusing, self inflation. Surrounded by sycophants and delusional advisors, he ignored human nature at every turn to replace self discipline with blind loyalty.

He challenged the authority of the American people in every way possible and that challenge must be met. Whether through public ridicule or criminal prosecution or both, I do not know, but these fantasy notions of secret laws and secret legal opinions allowing acts of treason and torture...this needs to be clearly repudiated and quickly. Even now, so called "serious" teevee journalists are lulling America to sleep with whispers of sympathy for the devil; whether torture works, whether torture should become our normal policy, whether criminal acts from the past should simply be forgotten because prosecution would be "divisive".

Posted by: Capt Kirk on January 15, 2009 at 9:19 AM | PERMALINK

and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land".

This was one part of the Constitution that I always thought Bush most blatantly disregarded, although certainly not the only part.
If we don't honor our treaties, then our word to the rest of the world isn't worth squat--and such disregard will regularly be thrown back in our faces when other countries choose to ignore them.
And yes, if we choose not to investigate and prosecute such wrongdoing, then Obama, and the American people, will have ceded the moral high ground in the future.

Posted by: Allan Snyder on January 15, 2009 at 9:20 AM | PERMALINK

Our constitutional law scholars Prez will of course ignore these obligations, Hilz. Geez, that wasn't so hard, was it?

Posted by: SocraticGadfly on January 15, 2009 at 10:32 AM | PERMALINK

I too would like to see the offenders against our constitution brought to justice. I too believe that doing so is a necessary step in setting right the course upon which this nation is now sailing. I too believe that merely stopping the illegal practices in not enough to restore the standing that we once held in the world.

But I think that claiming that Article II, Section 3 actually requires Obama to do that is spurious. No president can be held responsible for actions that occurred before he was sworn into office, and I do not think that such is the intent of that article of the constitution. Otherwise, does he need to go back and reinvestigate Iran-Contra, Watergate, Teapot Dome?

That isn't to say I don't want to see it done, but let's not start saying that Obama is failing to keep his oath if he fails to do it.

Posted by: Bill H on January 15, 2009 at 10:38 AM | PERMALINK

Sorry, Hilzoy, but it ain't so. I agree with the logic of each step of your argument. But the current Supreme Court does not. In the Medellin case the Court said that treaties which are not "self-executing" (which the CAT is not; long legal discussion of what this means can be found in many places) have no status as federal law. Thus they are not within the laws the President must take care to execute.

Of course, Congress has passed legislation to implement the CAT. But that legislation does not include the articles on an obligation to prosecute that you cite.

I wish things were different. And maybe the S.Ct at the end of a second Obama term will reverse Medellin, truly an awful decision. But for now I don't think you can say there is a constitutional obligation to prosecute

Posted by: Observer on January 15, 2009 at 10:58 AM | PERMALINK

But I think that claiming that Article II, Section 3 actually requires Obama to do that is spurious.

Read it again. Now read it one more time. No, wait, you still don't understand it -- now read it once more. Slowly this time. Stop and think every few seconds.

No president can be held responsible for actions that occurred before he was sworn into office, and I do not think that such is the intent of that article of the constitution.

What??? That's complete nonsense. Of course the president, as the executive, is responsible fo investigating and dealing with actions that occur before he was sworn into office but that have not yet been settled -- under your standard all any criminal would need to do would be to wait until a new president came into office and then be free and clear. We don't suddenly release every federal prisoner awaiting trial on Inauguration Day, you may have noticed.

Otherwise, does he need to go back and reinvestigate Iran-Contra, Watergate, Teapot Dome?

Don't be an idiot -- of course the answer is no, since these matters were already investigated and litigated. They are settled (you may have missed, for example, the Iran-Contra and Watergate hearings? They were in all the papers). The current regime's engagement in torture, however, is occurring here and now.

Posted by: Stefan on January 15, 2009 at 11:25 AM | PERMALINK

Let's make a major leap forward and assume that Obama (blessed be his name) is at least half as smart as his kool-aid drinking worshippers claim. He will never seek to prosecute a former President for the very good reason that he, as all Presidents,will have made decisions that can always be challenged as "un-constitutional".

He doesn't want to go there. Look for some saccharine blanket statement such as : "Mistakes may have been made but it is time to move forward and solve (fill in the blank) now"

Posted by: fred t on January 15, 2009 at 11:52 AM | PERMALINK

Is Bush going to make this moot by issuing a blanket pardon to all administration officials party to rulings allowing torture (but not, of course, the small fry actually doing the deeds)?

Five days and counting...

Posted by: allbetsareoff on January 15, 2009 at 11:58 AM | PERMALINK

Thank you, Hilzoy.

It's not difficult to determine the lawful and humane approach to torture. In the words of my Amnesty International bumper sticker:

Stop it. Investigate it. Prosecute it.

Posted by: klevenstein on January 15, 2009 at 12:10 PM | PERMALINK

...in that order. Obama might be starting to plan and initialize execution of this process, as bjobotts stated so well.

I've seen a lot of outcry about Obama's alleged direction, but much of this tooth-gnashing may be rendered mute when he actually begins to govern.

Like bjobotts, I can't really imagine a former professor of Constitutional law just blowing off these legal constraints, especially one who wrote the books he has authored.

Posted by: klevenstein on January 15, 2009 at 12:20 PM | PERMALINK

I agree with the business about "looking forward" instead of "looking backward". I look forward and see the same crimes recurring at the next opportunity - because some players in the Watergate and Iran-Contra scandals got off, and lived to power the 8-year Bush 43 scandal. Cheney and Rumsfeld were minor figures in Watergate and Iran-Contra, but they survived and nursed the totalitarian flame for another political generation. The Bush years' younger crowd - David Addington, John Yoo, Bradley Schlossman etc. - are settling into hibernation for now, but will be ready and waiting for the next Republican moment. If we want to "look forward" to a brighter future, we need to dig this decade's criminals out - root and branch.

Posted by: Brownell on January 15, 2009 at 4:35 PM | PERMALINK

Adherence to the Constitution is not political partisanship.

It is also not an option, but an obligation.

A duty.

Posted by: Annie on January 16, 2009 at 8:34 AM | PERMALINK

Well it seems to me that this is the obvious meeting ground of people who hate America. With that said...what life protecting liberal gave us the laws that said we should not touch the very people that are trying to kill us. The people that would rather kill themselves and take thousands with them then give up a name. I would rather make them wish they were dead then give them the oppurtunity to exploit our weakness again. We were naive and let these people go so they could kill our soldiers again. THOSE PEOPLE ARE NOT OUR CITIZENS!!! The torture rights should be granted to any civilian or combatant that is a registered American. Any one of you crazed democrats thinking that if we don't torture them, then they will eventually give up a source, is out of your mind. So what...he twisted some arms to get information. Cry me a river. It's because of these "hated" war tactics that you all go to bed every night not thinking about how you could have died from a terrorist attack. So once again...curl up in your cozy little bed and critisize the leadership of your future and not pray and hope and support it.


Posted by: Conservative2theend on January 22, 2009 at 9:14 AM | PERMALINK



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