To Prosecute or Not to Prosecute: Torture, Politics and the Rule of Law

This past April, The New York Times reported that a form of enhanced interrogation known as “waterboarding” was used on Khalid Shaikh Mohammed, confessed mastermind of the 9-11 attacks, upwards of 183 times, and that the same technique was performed on the high value Al Qaeda operative Abu Zubaydah at least 83 times. This information was contained in a series of memoranda written by the U.S. Department of Justice in response to CIA requests for a legal definition of torture, which in turn stemmed from the Bush administration’s explicit desire to see the legal constraints on interrogation relaxed in its response to the attacks on New York and Washington. One particular worry addressed in the “torture memos” (as they are now widely known) concerned the legal status of waterboarding, which was described as follows: an individual is bound securely to an inclined bench with their feet elevated; a cloth, cellophane or some other air-restricting material is placed over their face, whereupon water is applied to the cloth, further restricting air flow and causing an increase in blood CO2 levels. As is well documented, the procedure reliably simulates the experience of drowning, triggering an involuntary gag reflex and a primal sense of panic in a way that is far more effective than forcibly dunking an individual’s head under water. Again, according to the Bush-era torture memos, after 20 to 40 seconds, the cloth is to be lifted and the individual is allowed three or four full breaths before the procedure is repeated, until the interrogators are satisfied. Medical experts are required to be present throughout the procedure in case they are needed to perform an emergency tracheotomy. The memos concluded, to the great satisfaction of the Bush administration, that waterboarding was not torture for the purposes of the U.S.’s obligations under international law, but rather an “enhanced interrogation technique.”

The authors of the torture memos have been subjected to nearly universal condemnation, and many legal academics and public officials have called for their impeachment from public office (in the case of one federal judge) or that they be stripped of their license to practice law. The criminal prosecution of government lawyers for issuing reckless or at best negligent legal opinions is a much harder sell, of course, since few people want to get into the business of prosecuting lawyers for their faulty interpretations of vague law, no matter how absurd they might have been. In order to do so, it would have to be shown that the authors of the torture memos either knowingly or recklessly misrepresented the law, and that no reasonable person could have interpreted the law the way they did. This is a high standard to meet, of course, but an avenue that should be pursued any case. Similar difficulties confront prosecutions of executive branch officials and other individuals (such as employees of the CIA) who claim to have relied in good faith on the legal counsel provided in the memos. But again, if these officials knew or had reason to know that the memos were an intellectually indefensible accession to the emperor’s new cloths, or that no reasonable person could have believed otherwise, then perhaps there is room for prosecution. One thing that we do not want is to find ourselves confronted with the morally unacceptable Catch-22 scenario in which on the one hand we cannot prosecute government lawyers for poorly interpreting the law, while at the same time we cannot go after government agents and agencies that relied on those poor interpretations. Everyone is found innocent (or at worst negligent), and no one is held accountable. With just a dash of collusion between the Justice Department and the Executive, this would offer a wonderful recipe for tyranny.

The politically tainted Bush memos notwithstanding, waterboarding is by virtually all accounts a form of “torture” that is prohibited by various international conventions, including ones to which the U.S. was an enthusiastic signatory. It is also fairly clear that at least until the circulation of the torture memos, the United States’ official position was that waterboarding was in violation of international customary and positive law. Japanese soldiers were prosecuted for war crimes in part for their role in waterboarding captured U.S. soldiers; U.S. soldiers, by the same token, were prosecuted in the Philippines (at the end of the 19th century) and in the Vietnam War for waterboarding prisoners of war. Waterboarding has totalitarian roots that go as far back as the Spanish Inquisition, and it was the chosen means of torture employed by the Nazi Gestapo and the Khmer Rouge.

Hence the legality of waterboarding was to many legal experts a no-brainer—it was in violation of Common Article 3 of the Geneva Conventions, Article 5 of the Universal Declaration of Human Rights, and the United Nations Convention Against Torture. The claim that “everything is different after 9-11” is no defense, of course, as the Convention Against Torture explicitly anticipated this maneuver, providing in no uncertain language that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." In case there was any doubt of its intentions, the U.S. expressly implemented the Convention through domestic federal statute. Moreover, as a signatory to the above international treaties, the U.S. is obligated to prosecute domestic officials whom it has reason to believe committed war crimes, including torture.

The Obama administration, which officially declared waterboarding to be a form of torture in violation of international law, has nevertheless and for deeply political reasons chosen not to prosecute both former Justice Department officials and the individuals in the executive branch that happily relied on them as a justification for their elicit policies. The problem with the Obama administration’s decision to forego prosecutions is that it is symptomatic of what I take to be a more general perception, especially in the United States, regarding the attenuated nature of international legal obligations.

Many apologists for the Bush administration and its policy of torture have suggested that the decision to use harsher methods of interrogation was an inherently political one. That is to say, the executive branch did what it determined to be in the best interest of the United States, even if it knowingly violated international agreements in the process; after all, these were treaties that were made in good faith but which have become obsolete in the post-9-11 era of asymmetrical military threat. The sense you get from many of these folks is that they acknowledge that the U.S. did in fact push the international legal envelope in its enhanced interrogation practices, but that it was justified in doing so given its overriding national concerns. The Obama administration spurns this justification in theory, but thus far it has done little to reject the overarching interpretative framework—namely, that the United State’s willingness to adhere to or violate international law is based fundamentally on expedience and politics of the moment, rather than demanded by the rule of law. This reality is brought into sharp focus by Obama’s purely political decision not to prosecute former Bush cronies. However, what has been overlooked in much of the debate over the torture policies and memos is that it is chiefly a legal matter, not a political one. The decision regarding whether or not to prosecute domestic officials for violations of international law is a wholly legal one to be rendered by the putatively independent Justice Department, not a political one to be made by the executive. The fact that any such prosecution might jeopardize the Obama administration’s social-political goals is simply irrelevant, no matter how laudable they are. The decision is not subject to a cost-benefit analysis—it is a categorical obligation imposed by the rule of law.

One reason why many authors and officials have been sympathetic to the political dimensions of the decision as to whether or not to prosecute is that U.S. officials are accused of violating international law, rather than homegrown domestic law—the former is seen as legitimately subject to political calculations, the latter by contrast is viewed as having some inherent and inviolable normative value. Indeed, there would be little question about prosecuting former executive branch officials for suspected violations of quintessential domestic law, such as bribery, kidnapping, or murder—but international law, well, that is something different, since it relates to the qualified obligations that we have to the international community, rather than the categorical duties that we owe to our fellow members of the polity.

Setting aside a moral analysis of the obligations we have to abide by and support international law, all of this overlooks the very basic fact that the violation of the above international agreements is actually a violation of domestic federal law. According to the U.S. Constitution, international law created through treaties automatically becomes the “law of the land”: that is to say, it has the status of ordinary federal law, and thus treaty provisions take precedence over both the law of the states (federal units) and prior inconsistent federal law. This fact is not the result of some amorphous body of customary international law, or the logical conclusion of some philosophically controversial argument about universal human rights; it is the plain upshot of U.S. constitutional law since the drafting of the Constitution. Most constitutions contain provisions that provide for the incorporation of international legal instruments into the domestic legal regime, and (in part through jurisprudence) determine the status of these incorporated elements in order to resolve any internal conflict of laws.

For these reasons, the international law of torture is quite simply a fully functional part of U.S. domestic law, and it should be treated accordingly. While there may be instances in which the incorporation of international human rights law into the domestic legal scheme generates a genuine constitutional conflict, fortunately the international law of torture (at least as it applies to cases of international terrorism) is simply not one of them. Likewise, although there are some questions as to the legitimacy of the alleged “universal jurisdiction” of certain multilateral organizations (such as the International Criminal Court) which claim the right to govern non-signatories, the present case involves treaties to which the U.S., through the deliberate actions of the executive branch and ratification of the Senate, has explicitly consented. Even if the U.S. decided to “un-sign” all of the relevant torture treaties tomorrow (which it is obviously not prepared to do), it would still be obligated under the full force of federal law to prosecute former Bush administration officials for war crimes committed while the laws were in effect.

As the constitutional law professor Jonathan Turley stated in a recent column (U.S. News and World Report, 9 May 2009), “Torture and terrorism are cut from the same legal bolt: Both are violations of human rights and international law. If we want the world to join us in fighting one crime against humanity, we cannot continue to obstruct the prosecution of another…”

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