Eric Holder v. America's legal obligations

The Attorney General's proclamations of immunity for CIA officials are directly contrary to long-standing treaty obligations. Does that matter?

Published April 17, 2009 9:44AM (EDT)

(updated below)

Can anyone reconcile these?:

Barack Obama, yesterday:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

Eric Holder, yesterday:

It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.

Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:

Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . 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.

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

Geneva Conventions, Article 146:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Charter of the International Tribunal at Nuremberg, Article 8:

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

U.S. Constitution, Article VI:

[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

I agree entirely that it is the DOJ lawyers who purported to legalize torture and the high-level Bush officials ordering it who are the prime culprits and criminals, as compared to, say, CIA agents who were proverbially just following orders and were told by the DOJ that what they were doing was legal.  But leave aside the question of whether prosecutions would produce good or bad outcomes.  After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness.  If, as Barack Obama proclaimed yesterday, "the United States is a nation of laws" and his "Administration will always act in accordance with those laws," isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice?  How can they be reconciled?


UPDATE:  Anonymous Liberal responds and makes the best case he can for arguing against prosecutions of CIA officials in light of these legal obligations.  There is much worthwhile discussion that follows in his comment section. 

To be clear:  I'm not contesting that the focus of the investigations should be on top Bush officials and DOJ lawyers rather than mid-level CIA officials -- I think it should be.  Nor am I contesting that there may be sound policy reasons for refraining from prosecuting the CIA officials who applied these torture techniques.  There also may be good reasons of standard prosecutorial discretion (such as a low likelihood of conviction) to refrain from prosecuting.  I just don't think that decreeing in advance that there will be no prosecutions based on the notion that prosecutions would be "unfair" or that DOJ said these things were legal is remotely consistent with our treaty obligations (i.e., our binding law), which seem explicitly to bar these excuses.

By Glenn Greenwald

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