U.N. torture official on America's legal obligations to impose accountability

Shielding Bush officials from investigation violates clear international law and contradicts what we have demanded of others.

Published April 23, 2009 11:29AM (EDT)

After President Obama announced last week that he opposes prosecutions of CIA officials who tortured detainees in reliance on OLC memos purporting to legalize that conduct (a decision which is not Obama's to make), the United Nations Special Rapporteur on Torture, Manfred Nowak, announced that Obama's policy of immunizing CIA torturers violates international law and, specifically, the clear obligations of the U.S. under the Convention Against Torture (signed by Ronald Reagan in 1988).  

This morning, I conducted a 20-minute interview with Nowak -- which can be heard by clicking PLAY on the recorder below -- regarding the specific legal obligations of the U.S. to provide accountability for crimes of torture; how Obama's invocation of the "state secrets privilege" to block torture victims from having a day in court independently violates the Convention; and the detrimental impact that will result for the U.N.'s ability to hold torturers around the world accountable (which is Nowak's prime mandate) if the U.S. announces to the world that its own political leaders who systematically ordered torture will be shielded from all accountability.

On a quite related note, many people, such as Scott Horton, have argued that prosecutions of Bush DOJ lawyers who authorized torture find precedent in the Nuremberg prosecutions (as part of the Justice Case) of German lawyers who also declared various war crimes to be legal.  International law professor Kevin Jon Heller -- who questioned the applicability of that precedent -- today writes about a separate set of prosecutions by the Nuremberg Military Tribunal, as part of The Ministries Case, in which German officials were prosecuted for doing nothing other than stating, when asked, that they had no objection to the deportation of 5,000 Jews from France.  Those officials, who were convicted at Nuremberg, did not order the deportation or carry it out; rather, they merely failed, when asked, to object to the policy on the ground that it violated international law.  Professor Heller argues that this case provides an almost perfect precedent for holding OLC torture-authorizing officials accountable (emphasis in original):

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions -- failing to point out that the deportations violated international law.  The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

Obviously, with the most powerful military in the world, the U.S. has the power to declare itself exempt from international law and to refuse to adhere to its own treaty obligations.  We have the power (as distinct from the right) to ignore what the U.N. says about what we do and to refuse to abide by the standards we impose on others.  Indeed, that the U.S. can legalize the very same methods that we have long condemned as "torture" when used by other countries was exactly the core argument made by OLC lawyers to justify what they were doing.

But those who spent the last eight years criticizing the Bush administration for ignoring international conventions and legal obligations -- yet who now want to refrain from investigating Bush crimes -- should at least try to reconcile those past criticisms with their current unilateralist, exceptionalism-based arguments against holding our own criminals accountable (it's different when we do it).  And if this is the mentality we're going to adopt -- that we're not bound by our own treaty obligations and need not pay any heed to U.N. positions -- then we probably shouldn't expect that we'll be taken very seriously when we point to international obligations and U.N. pronouncements as a means for claiming that other countries are acting wrongfully.  Most people around the world do not accept the overarching belief of our political class that America can and should be exempted from the laws and standards imposed on everyone else.

The interview with Nowak can be heard on the recorder below.  A transcript will be posted shortly.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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