Hilzoy thinks Obama has to do it:
It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.
UPDATE: The Lithwick and Sands article Hilzoy is drawing from:
The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.Posted by armand at January 15, 2009 09:10 AM | TrackBack | Posted to International Affairs | Law and the Courts | Shine the Light on It
Ah, it's great to have smart liberals around to help us little people figure these things out. In the wake of our seventh years without a successful terrorist attack on our homeland, we culturally encapsulated xenophobes would be tempted to let this go. I'm sure the fact that 61 detainees at Gitmo have gone back to terrorism after our catch and release policy was instituted will mean nothing and Obama treating them better will mean everything, just as Obama getting elected brought peace to the Middle East, except for Gaza, Lebanon, and Israel, to date.
But I'm confused. Every well educated liberal who's called into radio programs has said that Obama would have no time to get to things like investigating the Bush administration or gays in the military until the economy thing was tackled. Has Obama declared "Mission Accomplished" on the economy, or are liberals getting steadily more confused by his grace the lord Obama?
And if Obama has an affirmative obligation to investigate those responsible for torture, how long will it be before his affirmative obligation drags Congressmen like Barney Frank in front of federal prosecutors investigating the torture brought on millions of unemployed workers by the economic malfeasance of corrupt Congressman who allowed their corrupt friends in Fannie Mae to continue their corrupt practices for four years after being warned of the danger?
Posted by: Morris at January 15, 2009 09:51 AM | PERMALINKMorris you are funny - your immediate response is to scream a) but she's a liberal! (which apparently means not worth listening to), and b) terrorists are bad! (not on topic - and the stats you refer to have been disproven ... which is actually referenced in the bottom of ths post I linked to - did you even read it?).
Your second paragraph - again, not on topic.
Your third paragraph - that's not funny, it's a twisted equivalence that mostly makes clear your don't take tortue or US law seriously.
All she is doing is noting that it appears to be the case that under US law we have to investigate. If you would rather Obama break the law, just say so.
Posted by: Armand at January 15, 2009 10:43 AM | PERMALINKYou say that when laws are broken we have to investigate. So why aren't we investigating members of Congress who had oversight on the banking committee as to why they would ignore the warnings of a foreseeable economic collapse? Until we start investigating Congress, we should expect nothing more. For instance:
Barney Frank interviewed by Lou Dobbs on September 24th:
"We are also setting up contrary to what they requested, a very tough oversight board. They will be appointed by the Senate majority leader and speak. Every single transaction they take if the bill passes will have to be immediately in real time reported to the oversight board. It will be totally public, what they bought and paid for it. If there was any suggestion there was a problem how they're doing it, that will be public."
Pelosi statement released January 9th:
"The Bush Administration has ignored the intent of Congress and the demand by American people for strong accountability and transparency in the financial rescue package. That is why, next week, the House will vote on legislation introduced today by Chairman Barney Frank that expands oversight, protects taxpayers' interests, and makes significant improvements to the law."
I thought they wrote the law? They're Congress, right? They write the laws, right? How is it that if they wrote the strict accountability spoken of by Barney Frank into the law that Pelosi and Frank can come back three months later blaming the Bush administration for not doing what they wanted? How is it no one can tell us where the money went, that banks aren't required to report it, if they wrote real time accountability into the law? They are defrauding taxpayers of almost a trillion dollars. They should be (at the least) investigated, that's the affirmative responsibility of the Justice Department. They have to, and if they don't, they're not doing their job, and they should be investigated.
Posted by: Morris at January 15, 2009 11:31 AM | PERMALINK1) I suggest you look into the meaning of the phrase "affirmative obligation".
2) You might also want to direct your political complaints to AG Mukasey and President Bush - they are in charge still running the country after all, and have been these past many months.
3) You seem to not consider the possibility that the Bush administration is implementing the law in a way that conflicts with the intention of Congress. Given the history of the Bush administration, that's gigantic oversight on your part.
4) "defrauding the taxpayers of almost a trillion dollars" - whoseajigawhat?
5) Since you seem determined to take this thread off the issue it was supposed to be on I'll lastly note that you are aware that Congress is in the process of working on new laws in this area, right?
Posted by: Armand at January 15, 2009 12:46 PM | PERMALINKMorris: Please name the law(s) you believe Barney Frank to have broken with respect to the present global economic crisis.
Posted by: jacflash at January 15, 2009 02:51 PM | PERMALINKLet's just cut this down to size, shall we? Morris almost certainly hasn't clicked through to the convention, and indeed I haven't read it in a while. Morris, would you consider reading these excerpts slowly, and thinking about them as anew, and remembering that we have declined to sign plenty of conventions over the years, so our decision to sign one ought to mean something? In case you want to read the whole thing, it's here, as Dahlia points out, but I'll just include excerpts:
***
Part I
Art. 1
1. [T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Art. 2
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Art. 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Art. 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Art. 6
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.
Art. 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Art. 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
Art. 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
PART III
Art. 31
1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of- the notification by the Secretary-General .
2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.
[The United States signed the Convention 18 April 1988, and ratified it 21 Oct. 1994 (link. Notably, the United States appears to have stated only one reservation to the effect that the Convention cannot require it to affirmatively enact legislation "prohibited" by the United States Constitution. (See note 12 to the ratification table linked above.) As everyone here surely knows, in the area of torture, defense, etc., outside the Bill of Rights, very little restricts the enactment of legislation, and off the top of my head I can think of no directly on-point constitutional "prohibition" as such.]
***
Now interestingly, my thoughts are less dramatic than Hilzoy's and Lithwick's. I'm not convinced that this Convention demands prosecution any time circumstances suggest same would be "reasonable" anymore than the existence of criminal drug possession laws require the police to pick up, and the DA's to prosecute, every snot-nosed kid they pick up with a joint in his shirt pocket.
But for starters, it's sort of striking to read the definition of torture here, having not seen it in years. It's amazing how much the Bush admin. has, by incremental movements in defensive talking points, managed to reframe the debate by moving the area of argument further and further away from the manifestly inclusive and erring-on-the-safe-side definition agreed to by the parties to the Convention.
Also striking is the explicit rejection of the "just taking orders" defense. Art. 2(3).
Thus, in short, I think Lithwick is generally right about the import of the interview, and there is really no doubt that a number of acknowledged interrogation tactics we've heard tell of (either by administration admission or from reliable, corroborated sources) are torture, including rendition. Art. 3.
As for mandatory prosecution, however, I'm less sure. I assume she's focusing on the provisions contained in Articles 4 through 6. Article 4 merely requires signatories to enact laws that criminalize torture as defined by the Convention, and establishing a regime of punishment proportionate to the gravity of the crime, but unspecified by the Convention.
Article 5, in turn, calls for the mandatory ("shall") taking of "jurisdiction" over the "offences" established pursuant to Article 4 -- i.e., those practices defined by the Signatory State as torture in satisfaction of the Article 4 mandate to criminalize such practices. Frankly, I don't know what the Convention intended by requiring the taking of jurisdiction, or by demanding the states do so over the offenses in question, but recognizing jurisdiction in its common usage is not, to my thinking, the same as mandatory prosecution.
To me, the money shot is Article 6, which provides as follows: "Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence." I do not find a mandate to prosecute here, either. When do the "circumstances so warrant?" It may seem trivial that a confirmed, or probable cause-worthy level of suspicion of torture necessarily "so warrants," it may even seem necessary given odiousness of any act of torture, but my legal training prompts me to see in this language a deliberate dodge. I just don't think this carries the water it's being asked to. Yes, the language of custody is mandatory, but the prerequisite, "upon being satisfied," is the ultimate discretionary prefatory clause.
So this [ad hominem sneering usage of "smart"] liberal does not agree that we're bound to prosecute by the Convention. This [ahsuos] liberal does, however, believe that the version of "torture" we've been sold by the Bush administration has been so patently disingenuous, in light of the duly signed and ratified Convention's own terms, that certain officials should be forced to choose between a year at Gitmo and repeating the second grade (naturally, subject to No Child Left Behind's mandate that one learn to read with one half of one's time, and prove that one has learned to read with the other half of one's time). Because it is so patently clear that responsible parties read this and decided to defy it that either their respect for the rule of law or their literacy.
Still their, Morris? Care to comment on the Convention or my interpretation of same? I already know you don't care for international law, but your Senate did ratify this, you know. And in 1998, if I'm not mistaken, it was yooooour Senate.
Oops. I apologize. Ratification 21 Oct. 1994 means it may have been our Senate -- I can't remember. In any event, we'd have to look to the vote before we assumed it was all Dems supporting it.
Posted by: moon at January 15, 2009 03:03 PM | PERMALINKDid IQ's drop suddenly? Do you not understand the meaning of bribery? Quid pro quo. Let's look at the membership of the house financial services committee that decided fannie mae wasn't in trouble and shouldn't have its oversight moved outside of Congress:
Barney Frank, chairman, received over $42K in political contributions from Fannie Mae since 1989.
Paul Kanjorski, Democrat PA, received $96K.
Maxine Waters, Democrat CA, received almost $18K.
Carolyn Maloney, Democrat NY, received over $39K.
Nydia Velasquez, Democrat NY, receiverd over $20K.
Melvin Watt, Democrat NC, received over $17K.
Brad Sherman, Democrat CA, received $18K.
Gregory Meeks, Democrat NY, received $14K.
Dennis Moore, Democrat KS, received $26K.
Ruben Hinojosa, Democrat TX, received over $14K.
William Clay, Democrat MO, received over $10K.
Joe Baca, Democrat CA, received over $20K.
Stephen Lynch, Democrat MA, received over $22K.
Brad Miller, Democrat NC, received $18K.
David Scott, Democrat GA, received $17K.
Melissa Bean, Democrat IL, received over $41K.
Ron Klein, Democrat FL, received $11K.
More than a dozen other Democrats on the committee took a few thousand but not $10K. Jackie Speier is the only Democrat on the committee who didn't take money from Fannie Mae as of September of last year, and she wasn't sworn in until April of last year. At the top of the list of recipients was of course Chris Dodd who received more than $165K, followed by Barack Obama who received more than $126K.
Obama's buddy Franklin Raines was emphatic five years ago about not taking away the president's power to appoint five of the eighteen board members, despite the Bush administration wanting to do away with that executive perk. But most politicians unlike Bush, even on the Republican side, have taken money from Fannie Mae. To turn their heads away from the impending financial disaster unseen since the Great Depression may be reckless endangerment. If it's a foreseeable consequence of their actions, if they were warned (as they were) and didn't listen, those who voted to keep doing the same things the same reckless way should be held accountable.
At the very least, for Barney Frank to promise he would write realtime oversight into the bill and then come back and blame Bush for failed oversight, claiming he doesn't know what happened to the money is fraud. He overstated his assets (oversight resources), and he gained our confidence by assuring us of resources that never existed. There was no protection written in against spending the money before oversight was in place. Who's job is it to write the bills? The Constitution says it's Congress. If Barney Frank promised it, and it wasn't there, and he didn't require it to be there, it's fraud. Ignorance of the law, or just generally, is no excuse.
And by the way, the court in the Enron case ruled that there is an affirmative duty to inform investors (taxpayers) of a threat to assets (bailout money). Barney Frank didn't do that.
Moon,
It's not that I'm not listening, it's that I don't care. If you and your far left buddies want to give us our next Oliver North or G. Gordon Liddy, be my guest. I'm sure some low level beaurocrat doing his patriotic duty could use his own talk show.
Let's be clear:
First of all, I wrote that I don't interpret the Convention as Lithwick does to mandate the discretionary act of determining whom, and whether to prosecute. I forgot in my earlier discussion to raise what I believe to be the critical interpretive point: that reading the Convention to compel prosecution of every torture suspect no matter how trivial is inconsistent with standard law enforcement practice the world over: to leverage little fish to access the big fish. If you can't decline to prosecute someone you know is guilty of something, you have no leverage to compel cooperation. Hence, to read the Convention as rigidly and tendentiously as Lithwick appears to is to argue for the proverbial absurd result that statutory construction seeks to avoid.
But let's also be clear about you:
You just said, you can't be bothered to engage in a direct, rigorous, substantiated debate about the nature of our commitments (commitments entered voluntarily, as an indirect product of our Democratic process) when it's so much easier to cite some rightwing shut-in blogger in lieu of meaningful discussion, someone who couldn't develop a policy adequate to get him out of his mother's house, but you're going to listen to him on torture? Lawlessness is fine, as long as it's lawlessness in service of your favored objectives, eh? I hate to succumb to Godwin's law, but it's really really tempting at the moment.
But I'm glad we settled this. Since you obviously have no interest in discussing torture like an educated adult, perhaps now we can trust that you won't throw out cheap troll comments when the topic comes up in the future.
Posted by: moon at January 16, 2009 10:39 AM | PERMALINKYou want to ignore ethical and legal violations by every Democrat member of the House Financial Services Committee, so I'll trust you won't have anything to say when the issue comes up again.
Posted by: Morris at January 16, 2009 01:08 PM | PERMALINKI'm sorry, but pay to play, so defined, implicates the entire structure. If you want to have a serious discussion about the topic, you can start by listing the Republican legislators who were on the take and cast votes on the same stuff, and you can stop bringing up Fannie Mae until you're prepared to explain why McCain's obviousy up-to-his-neckedness in Fannie Mae tendrils, even to the exent of handing his campaign over to someone on the payroll, isn't just as problematic, at least for a guy, like you, who almost certainly voted for him.
Posted by: moon at January 16, 2009 01:58 PM | PERMALINKNot to mention that pay to play, unlike rendition and torture, doesn't get people killed, doesn't compromise our stature with the world vis-a-vis human rights, doesn't indicate that our signature/ratification of treaties isn't worth the the paper it's printed on (with attendant security issues that come with other countries having no faith that we mean a damned thing we say), etc.
But yeah, Fannie -- that's a problem.
Posted by: moon at January 16, 2009 02:00 PM | PERMALINK"Not to mention that pay to play, unlike rendition and torture, doesn't get people killed"
Not so fast, slick. I would first argue that torture getting information from KSM and others saved lives. And second, are you saying that the American economy is so strong that no one will die because of this recession? This recession is a direct foreseeable result of what looks to just about everyone like pay to play, and my guess is you think many more people will die because of unemployment in the next year than died from torture while Bush was in office.
I'm not saying it's just Democrats, it's Republicans too. The harshest critic of Fannie Mae took a job as a lobbyist for a hedge fund after leaving Congress, someone who took no money from Fannie Mae while he was in office. This should be Abramoff times a hundred. Who here has clean hands? But because both parties are dirty, they're covering for each other. This is both sides blaming the other and hoping we don't notice. They should be ashamed, and they should have known better. How do you not recuse yourself from voting on oversight for a group that donates thousands of dollars to your campaign?
But Barney Frank went further. He promised there was oversight, he told us oversight assets existed, and it was his job to guarantee it if he promised it, but he didn't. He was chairman of the committee, it was his job. That's fraudulent. How is it we don't hold a politicial official accountable for losing track of hundreds of billions of dollars? When Halliburton does a hundredth of that, you want their heads. U.S. Senators should have a higher standard.
"doesn't compromise our stature with the world vis-a-vis human rights"
Right, it compromises our stature vis-a-vis an economic downturn, not human rights, except as property is defined as a human right in which case blowing hundreds of billions of dollars of other people's property (OPP) is a widespread encroachment on human rights of taxpayers.
"doesn't indicate that our signature/ratification of treaties isn't worth the the paper it's printed on"
Right, because I'm sure that having Congressmen who don't know what they're doing makes countries want to involve themselves with us. Incompetence out of stupidity is like incompetence out of greed in that you don't want to work with either one.
You might argue that - people within an actual position to know (not you) disagree.
And I'm sorry dude, but this entire thing is beyond stupid - from you equating hearings of the House Financial Service Committee with torture issues, to thinking Barney Frank is in charge of implementing policy, to throwing around crimes like "bribery" without any evidence of such a thing. Please do tell Morris - what crimes are charging Mr. Frank, etc. with?
This thread about a serious torture issue. Instead you want to make wacky, simplistic charges that relate to people with complex positions (your discussion of Frank on Freddie and Fannie is waaaay too simplistic - read the recent piece on him in The New Yorker) on a substantive issue that is not remotely relevant or related to the issue at hand.
Posted by: Armand at January 16, 2009 11:28 PM | PERMALINK"And I'm sorry dude, but this entire thing is beyond stupid - from you...thinking Barney Frank is in charge of implementing policy..."
Actually, it was Barney Frank:
"The Treasury had said it would give money only to healthy banks, to jump-start lending. But OneUnited had seen most of its capital evaporate. Moreover, it was under attack from its regulators for allegations of poor lending practices and executive-pay abuses, including owning a Porsche for its executives' use.
"Nonetheless, in December OneUnited got a $12 million injection from the Treasury's Troubled Asset Relief Program, or TARP. One apparent factor: the intercession of Rep. Barney Frank, the powerful head of the House Financial Services Committee."
Posted by: Morris at January 24, 2009 11:12 AM | PERMALINK