Banning Torture is Not Enough

By Jordan Paust | JURIST 

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that President Barack Obama should follow up his executive order banning torture and inhumane interrogation by fulfilling treaty-based and customary international legal obligations to either initiate prosecution of or to extradite all persons - including high US officials - reasonably accused of having previously authorized, ordered, abetted, or perpetrated torture and other war crimes and/or crimes against humanity….

On January 22, 2009, President Barack Obama signed an Executive Order on Ensuring Lawful Interrogations, mandating that all U.S. interrogations of persons comply, at a minimum, with the requirements under treaty-based and customary international law reflected in common Article 3 of the 1949 Geneva Conventions and, therefore, that all persons “shall in all circumstances be treated humanely.” The Order lists among its purposes the need “to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed.”

Additionally, the Executive Order assures that all interrogations of any individual “in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict,” will be conducted in accordance with the 2006 U.S. Army Field Manual on intelligence collection. The Field Manual also requires that common Article 3 will provide a minimum standard for treatment of human beings. Importantly, the military manual - the product of what finally became a successful opposition by military lawyers to use of illegal interrogation tactics - lists specific tactics that must never be used, such as waterboarding, use of extreme cold (e.g., the cold-cell), use of dogs, and stripping persons naked and hooding, all tactics of torture, cruel and inhumane treatment that were authorized by President Bush for use during his admitted “program” of “tough” interrogation and secret detention or forced disappearance (which is itself a crime against humanity and war crime) and as part of the well-documented “common, unifying” plan to deny Geneva law protections and to use and attempt to justify serial and cascading criminality in the form of coercive interrogation. In fact, last summer it was disclosed that such tactics had been addressed and expressly and/or tacitly approved and facilitated during several meetings of the National Security Council’s Principals Committee in the White House during 2002 and 2003 that were attended by Dick Cheney, his lawyer David Addington, Condoleezza Rice, Donald Rumsfeld, George Tenet, John Ashcroft, and others who facilitated their approval and use, including John Yoo. Several lawyers even made a trip to Guantanamo in September 2002 to discuss use of SERE [Survival Evasion Resistance and Escape] tactics and some saw how they were being used against detainees being held in secret detention.

In this regard, President Obama’s Order states: “Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.” It would serve transparency and our democratic values to declassify all such directives, orders, and regulations with lawful interrogation tactics and assessments thereof blacked-out if need be, thus leaving for the public eye the unlawful tactics that had been authorized and abetted (since they are unlawful and should never be used again), most of which are known publicly anyway.

What President Obama has done is necessary to reassure the world that there is a new U.S. commitment to the rule of law, reaffirm that no one is above the law, and reclaim U.S. respect and integrity. Importantly, what the President has done is necessary under the United States Constitution. Our Constitution requires nothing less than that the President “take Care that the Laws be faithfully executed,” and it has been known since the Founding that such laws include treaty-based and customary international law, such as common Article 3 of the Geneva Conventions. Indeed, every relevant judicial opinion since the beginning of the United States has recognized that the President and all within the Executive branch are bound by the laws of war, a point famously reaffirmed by President Lincoln’s Attorney General in 1865 while addressing the need to prosecute war crimes and the lack of congressional power to limit the reach of the laws of war. International laws that President Obama must faithfully execute during an armed conflict include common Article 3 of the Geneva Conventions as well as all other treaty-based and customary laws of war, the Convention Against Torture, the International Covenant on Civil and Political Rights (which also prohibits torture and cruel, inhuman, and degrading treatment in all circumstances, including in times of relative peace), and related customary international laws. President Obama’s executive order to replace unlawful authorizations and orders during the Bush Administration with the requirement that such laws be faithfully executed by all U.S. nationals and certain other persons covered by the Order is the constitutionally proper and necessary response.

What should ultimately follow is presidential execution of treaty-based and customary international legal obligations to either initiate prosecution of or to extradite all persons who are reasonably accused of having authorized, ordered, abetted, or perpetrated war crimes and/or crimes against humanity. For example, Article 146 of the 1949 Geneva Civilian Convention expressly and unavoidably requires that all Parties “search for persons alleged to have committed, or to have ordered to be committed, … grave breaches [of the Convention] and shall bring such persons, regardless of their nationality, before its own courts” for “effective penal sanctions” or, “if it prefers, … hand such persons over for trial to another High Contracting Party.” The obligation is absolute and applies with respect to alleged perpetrators of any status. As a party to the Geneva Conventions, the United States must either initiate prosecution or extradite to another state or, today, render an accused to the International Criminal Court. “Grave breaches” of the Convention include “torture or inhuman treatment” and transfer of a non-prisoner of war from occupied territory. Similarly, Article 7, paragraph 1, of the Convention Against Torture expressly and unavoidably requires that a Party to the treaty “under whose jurisdiction a person alleged to have committed … [for example, torture or “complicity or participation in torture”] is found, shall … if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” There are no other alternatives.

As documented in a recent draft law review article on “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” [to be posted soon on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331159] ultimately President Obama can restore the rule of law, bring an end to seven years of impunity, and restore American honor, integrity, and respect only by adherence to the express and unavoidable constitutional duty of the President of the United States to faithfully execute the laws, including relevant international laws requiring prosecution or extradition of criminal accused. It is not a decision for committees, politics, and compromises, but of law. It is not a decision that may be comfortable, but it is one that President Obama must make at this defining moment in our history that follows well-known serial and cascading criminality never before authorized by a President and Vice President. It is a decision that must be made by President Obama as he begins to define his legacy.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

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