Torture and “laying blame for the past”

On Thursday, the Obama administration released several of OLC’s notorious, but previously classified, memos on so-called enhanced interrogation techniques. President Obama made a statement decrying the techniques at issue but offering assurance to “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.” This promise appears to be directed at the CIA interrogators themselves, not at the lawyers who drafted the memos or the policymakers who ultimately called the shots. Still, a passage near the end of Obama’s statement suggests that the administration’s not planning to charge anybody, period. He stated:

“This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”

This is a poetic passage, but is it right? The United States is party to a treaty (the Convention Against Torture ) that unambiguously requires it to take suspected torturers (or those complicit in torture) into custody and either extradite them or “submit the case to its competent authorities for the purpose of prosecution.” Now, Obama did not use the word “torture” in his statement, which was surely not an accidental omission—but his AG did explicitly state that waterboarding was torture in his confirmation hearings, and Obama presumably condemned these memos because he disagrees with their legal conclusion that none of the disputed techniques constituted torture. Let’s assume arguendo, then, that torture took place.

If this is so, then it seems to me that the United States has a clear treaty obligation to do precisely what Obama dismisses as a waste of time: lay blame for the past, and look for retribution. That is what obligatory-prosecution treaties are for—they aim to end impunity for international crimes by requiring governments to look backward, and demand accountability, even when they would rather not do so. I am not suggesting that the Convention requires every individual associated with torture to be prosecuted regardless of the circumstances. It states that upon investigation, the “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State,” which seems to allow some room for the ordinary exercise of prosecutorial discretion. DOJ might reasonably decide that some of the people involved with the policy aren’t legally responsible under the criminal implementing legislation. Or it could choose to focus enforcement resources on those it deems the most responsible for the policy, and exclude the interrogators themselves. Or it could decide that it simply couldn’t win cases against interrogators—that no U.S. jury would convict a defendant who had been acting on orders and on DOJ legal advice when the chief witness for the prosecution is a senior al Qaeda operative. But Obama didn’t make those arguments—instead, his argument was simply “Time to move on.” And that seems to me to be the one argument that the Convention bars us from making.

All that said, I have considerable sympathy for the position that Obama is in and even for the “time to move on” argument. Because I teach and write about international criminal law, quite a few people have asked me in the past few months whether I think Obama should pursue torture prosecutions, and my response has often begun with some variation of “Ugh.” On the one hand I have the international lawyer reaction, which is yes, of course (assuming the evidence is there to support prosecutions). But on the other hand I have the gut reaction, the practical reaction of somebody who generally supports President Obama and his policy agenda and wants him to succeed. That side of me says ugh, what a political nightmare that would be—there goes health care, etc., and is it really worth it?

As a general matter, while I hope that the push toward effective enforcement of international criminal law will continue and believe that domestic courts should be the front-line enforcers, I’m not really a supporter of the idea of imposing on states an absolute obligation to prosecute past international crimes. In some situations, there may be really compelling reasons not to do so. Not every society is the same; sometimes victims of international crimes would rather have peace than justice, for instance, and it is facile to suggest that the two always go hand in hand. Amnesties can sometimes help to bring an end to wars. Fragile new governments could be destabilized by an attempt to target former leaders, exposing citizens to renewed atrocities. My gut “ugh” reaction to the idea of prosecutions in the U.S. gives me renewed appreciation of the difficult dilemmas faced by transitional governments who are trying to do the best they can for their people.

When it comes to our dilemma, though, I don’t think “ugh” is ultimately a compelling argument. The United States is not a struggling transitional state, nor a war-torn nation trying to broker a peace deal with rebels. We have not experienced an overthrow of a regime, but a peaceful change of administration. Obama is the popular president of the world’s richest and most powerful nation and its oldest democracy. Taking on a few controversial prosecutions will not rend our Union–indeed, most Americans oppose torture and it is certainly possible that a criminal process (or at least a serious criminal investigation), carried out fairly and targeting those most responsible, might strengthen that consensus. And while the President is right that the country faces great challenges at this time, I think that in one important way pursuing these cases might help us to meet those challenges. The rest of the world cares about this stuff, and we need to earn back the trust of the rest of the world. We have made an unambiguous treaty commitment, and Obama ran for president in part on a promise to do his best to restore U.S. moral standing in the world by taking our international legal commitments seriously. I have to swallow hard saying it, but I would like to see that promise filled.

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7 Responses

  1. Sonja,

    It’s interesting to recall, in the words of David Luban, that one of the Bybee Memos “argued that the criminal laws against torture could not be enforced against interrogators authorized by the President.” At the international law blog EJIL Talk! Dapo Akande provides a nice analysis:

    “…[I]nternational criminal law does not, as a general matter, recognise a mistake of law defence, unless the defence negates a mental element of the offence. Moreover, it does not recognise such a defence even if the person concerned relied on legal advice. This may be justified by the fact that international criminal law prohibits particularly heinous acts and persons who commit these acts are morally culpable, even if they consider their acts to be lawful.

    However, international law may well recognise one type of mistake of law defence. This is the defence of superior orders. There is a longstanding debate about whether customary international law recognises this defence. The Statutes of the ICTR, ICTY and the Special Court for Sierra Leone provide that superior orders does not relieve of criminal responsibility but may be considered in mitagion of punishment. Nevertheless, this defence is included in Art. 33 of the Statute of the ICC. The defence is recognised only to the extent that the person carrying out the order did not know that the order was unlawful and to the extent that order was not manifestly unlawful. Thus the defence is only available to the extent that there is an order from a superior AND the subordinate is resonably mistaken as to the legality of that order. Hence, the qualification of this defence as provided in the ICC Statute as a type of mistake of law defence (though one not available with regard to genocide and crimes against humanity). There has been considerable debate as to whether it is the ICC provision or the Nuremberg/ICTY/ICTR which represents customary international law. I think there are good arguments for saying it is the former: it represented the law prior to Nuremberg and, under the influence of the ICC statute, is already dominating thinking on the issue. But even if the defence of superior orders is established in customary international law, Art. 2(3) of the Torture Convention provides that “An order from a superior officer or a public authority may not be invoked as a justification of torture. ” Does this provision mean that superior orders is never available with respect to torture. The answer must be no. For one thing, it should be remembered that torture may be prosecuted as a war crime under the ICC statute. Art. 33 of the ICC Statute excludes superior orders as a defence with respect to orders to commit genocide and crimes against humanity but there is nothing to suggest its inapplicability to torture as a war crime. Moreover, Art. 2(3) of the Torture Convention deals solely with the fact that the subordinate has received an order. It does not specifically cover the situations dealt with by Art. 33 of the ICC Statute and customary international law, where the subordinate receives an order which is not manifestly unlawful and the subordinate is subjectively mistaken as to the order’s legality. In such a situation, its not just the order that is invoked as the justification, the order is merely a part of that justification. So, one could read Art. 2(3) Torture Convention and Art 33, ICC Statute consistently by interpreting the former to mean that the mere fact that the accused has received a superior order may not be invoked as a justification. In conclusion, there are reasonable (though not undisputable) grounds for arguing that CIA officials who conducted the interrogations might be able to rely on the category of mistake of law defence which is superior orders.

    Reliance on mistake of law and superior orders raises a couple of further issues. To the extent that superior orders is relied on and allowed, it has the effect of immediately establishing the responsibility of higher level officials who gave the orders. So, the Obama Administration is in an escapable bind. If it relies on mistake of law in order to excuse actions of its officials, it is relying on a defence generally unavailable in international criminal law (and which will therefore not prevent foreign prosecutions). To the extent that the US relies on that aspect of mistake of law which incorporates superior orders, as a way of excusing those who carried out the order, the US is admitting the responsibility of those who formulated and gave the orders. Those higher level officials who gave the order or indeed those who formulated the proposals that led to the order will not be able to rely, under international criminal law, on any mistake of law or superior orders defence.”

    It’s not international crimes per se (which of course includes such things as piracy, highjacking, trafficking of various kinds and money-laundering) that is at issue, but a particular cateogory of same: “The prohibition on torture is one of a handful of rules that international law recognizes as jus cogens norms, meaning that they are absolute, and their violation is *never* justified.” (David Cole and Jules Lobel) Or, as the philosopher Henry Shue (one of the first if not the first to dismantle and discredit the ‘ticking time bomb’ scenario that so enchanted Cheney and others in the Bush Administration) has written, “No other practice except slavery is so universally and unaminously condemned in law and human convention.” [There is a rather large literature on jus cogens (peremptory) norms (e..g., genocide, apartheid, slavery and torture; torture, like rape and murder, are *mala in se*) ranging from the dismissive to the celebratory; among recent writings on the topic, I’ve found Larry May’s discussion the clearest and most compelling. Please see his book, Crimes Against Humanity: A Normative Account (2005), especially pp. 24-60. As May notes, ‘It is surprising that one of the most influential accounts of jus cogens norms in international law was provided sixty years ago by Alfred von Verdross, who was a self-described legal positivist.’ Thomas Crocker has pointed out the fact that Federal courts, in addressing claims brought under Alien Tort Claim Act, have recognized the jus cogens character of the prohibition against torture.]

    And, please, let’s not forget that we’re talking about “cruel, inhuman and degrading treatment” as well. This suggests we have a standard of “humanane treatment.” On this, please see Larry May’s discussion in War Crimes and Just War (2007): 67-90. See too Jeremy Waldron’s paper, “Cruel, Inhuman, and Degrading Treatment: The Words Themselves,” available at SSRN:

    Re: “Not every society is the same; sometimes victims of international crimes would rather have peace than justice, for instance, and it is facile to suggest that the two always go hand in hand. Amnesties can sometimes help to bring an end to wars. Fragile new governments could be destabilized by an attempt to target former leaders, exposing citizens to renewed atrocities. My gut ‘ugh’ reaction to the idea of prosecutions in the U.S. gives me renewed appreciation of the difficult dilemmas faced by transitional governments who are trying to do the best they can for their people.”—

    Both the “complementarity” principle of the Rome Statute of the ICC and the notion of “universal jurisdiction” (the latter not part of the Rome Statute, as Kevin Jon Heller recently pointed out at the Opinio Juris blog) should be thought of ways to address the issue of weak or fragile (and not just ‘unwilling’) governments….

  2. JT says:

    I recently was reminded of a Washington Post report that a small group of Members of Congress were briefed in detail on the coercive techniques, including waterboarding, prior to the implementation of the techniques. Alletgedly, the Members raised no objections; rather, they asked for assurance that the techniques were “tough enough.” These individuals would be protected from US prosecution in any event by the Speech or Debate clause, and I would think from extradition on the same basis. If, however, the Speaker or other person at the briefing were happened to be in Spain, would the US laws provide any protection from prosectuion for her or his role in enabling torture?

  3. moz says:

    So, what grounds will the US accept as reasonable for countries that want to torture US citizens with impunity? That’s the question you should be asking yourselves. Is this a precedent that you’re willing to live with?

  4. Sonja,

    My last paragraph makes a point but it can be rightly read as being dismissive of the unique set of questions raised by transitional justice as noted in you post, so I should state that I agree with the bulk of your concerns on this score and think that the means, methods, and goals of retributive criminal justice require modification or re-consideration in such circumstances.

  5. I should also note, with Kevin Jon Heller at Opinio Juris, that the ICC does not of course have jurisdiction over the acts of torture committed by the CIA at Guantanamo Bay, although we know the CIA’s rendition program and use of “black sites” involved countries (e.g., Poland, Romania, Italy?) that are State Parties to the Rome Statute.

  6. rrefutable Proof ICTY Is Corrupt Court/Irrefutable Proof the Hague Court Cannot Legitimately Prosecute Karadzic

    War crimes tribunals are only as effective as they are true tools of international social justice for bearing genuine historical record.If anyone doubts what I am saying, reexamine the political show trials of both Jesus and Socrates.

    In the case of Dr Karadzic currently in the Hague, my eye witness testimony proves the Hague was never a true tool of international social justice from its very conceptions/construction phase.

    This legal technicality indicates the Hague must dismiss charges against Dr karadzic and others awaiting trials in the Hague jail; like it or not.

    If American criminal Madoff stood in front of court that was as seriously corrupted, flawed and compromised as the Hague, he would have to be acquitted or transferred to another court.

    Unfortunately for the The Signatures Of the Rome Statute United Nations member states instituting the ICC housed at the Hague, in Karadzic and other Hague case, there is no other international court capable; even if there was, the same United Nations member states that spoke about trading judicial appointments and verdicts for funding when I attended the 2001 ICC Preparatory Meetings at the UN in Manhattan would be morally incapable of constructing another court to hear cases.

    My suggestion is to transfer immediately Dr Karadzic and others awaiting trial at the Hague back to Serbia and their respective countries to decide how to proceed next.

    I witnessed with my own eyes and ears when attending the 2001 Preparatory Meetings to establish an newly emergent International Criminal Court, the exact caliber of criminal corruption running so very deeply at the Hague, that it was a perfectly viable topic of legitimate conversation in those meetings I attended to debate trading verdicts AND judicial appointments, for monetary funding.

    Jilly wrote:*The rep from Spain became distraught and when her country’s proposal was not taken to well by the chair of the meeting , then Spain argued in a particularly loud and noticably strongly vocal manner, “Spain (my country) strongly believes if we contribute most financial support to the Hague’s highest court, that ought to give us and other countries feeding it financially MORE direct power over its decisions.”

    ((((((((((((((((((((((((( ((((((((((((((((((((((((( Instead of censoring the country representative from Spain for even bringing up this unjust, illegal and unfair judicial idea of bribery for international judicial verdicts and judicial appointments, all country representatives present in the meeting that day all treated the Spain proposition as a ”totally legitimate topic” discussed and debated it between each other for some time. I was quite shocked! The idea was “let’s discuss it.” “It’s a great topic to discuss.”

    Some countries agreed with Spain’s propositions while others did not. The point here is, bribery for judicial verdicts and judicial appointments was treated as a totally legitimate topic instead of an illegitimate toic which it is in the meeting that I attended in 2001 that day to establish the ground work for a newly emergent international criminal court.))))))))))))))))))))))))))))

    In particular., since “Spain” was so overtly unafraid in bringing up this topic of trading financial funding the ICC for influence over its future judicial appointments and verdicts in front of every other UN member state present that day at the UN, “Spain” must have already known by previous experience the topic of bribery was “socially acceptable” for conversation that day. They must have previously spoke about bribing the ICTY and ICC before in meetings; this is my take an international sociological honor student.

    6:50 PM