Does CAT Require the Prosecution of Torturers? (Updated)

There is a lively debate going on in the blogosphere about the legal impact of Eric Holder’s statement that waterboarding is torture and Susan Crawford’s conclusion that Mohammed al-Qahtani was tortured while in custody at Guantanamo Bay.  Does Holder’s statement and Crawford’s conclusion require the US to prosecute the interrogators who used waterboarding and the Bush administration officials who approved its use?  Glenn Greenwald believes that they do, as do Dahlia Lithwick and Philippe Sands, writing together.  Eric Posner, by contrast, insists that they do not.

I firmly believe that anyone involved in waterboarding should be criminally prosecuted.  That said, I think Posner has the better of the legal argument.  Greenwald, Lithwick, and Sands base their position on Article 7(1) of the Convention Against Torture:

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.

Article 7(1) clearly requires the US to submit the case of anyone suspected of being responsible for waterboarding to the competent authorities “for the purpose of prosecution.”  That does not mean, however, that the “competent authorities” — the Department of Justice — must actually prosecute the suspects.  The problem is Article 7(2):

These 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.  In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall be no less stringent than those which apply in the cases referred to in article 5, paragraph 1.

Article 7(2) clearly contemplates the possibility that the competent authorities will decide not to prosecute a person suspected of being involved in torture.  If prosecution was mandatory in all cases, regardless of the strength of the evidence against the suspect, the term “decision” in paragraph (2) would be superfluous — the decision would have already been made for the competent authorities by the Convention itself.

Moreover, as Posner points out, prosecutorial discretion — the right not to prosecute a case — is “a fixture of American law.”  Prosecutors routinely decline to prosecute “ordinary” offences, even very serious ones, for a variety of reasons: lack of evidence, lack of resources, policy considerations, etc.  Article 7(2) permits prosecutors to decide whether to prosecute torture in the “same manner” as in these cases, which means that they have the discretion not to prosecute cases involving torture, as well.

That said, there are clearly limits on the competent authorities’ right not to prosecute an individual suspected of torture.  Here is a passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment:

Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture.  The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only.  In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment.  The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture.  If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

It is unclear how much of this applies to the US, where the exercise of prosecutorial discretion is unreviewable and private prosecutions are not allowed.  Nevertheless, there is no question that certain rationales for declining to prosecute a torture suspect would run afoul of CAT.  Article 2(3), for example, specifically prohibits states from recognizing superior orders as a defense to prosecution.

Other rationales, however, are clearly legitimate under CAT — evidentiary problems foremost among them.  As J. Herman Burgers and Hans Danelius have pointed out in their handbook on the Convention:

The second sentence [of Article 7(2)] makes it clear… that although the principle of universal jurisdiction has been regarded as an essential element in making the Convention an effective instrument, there has been no intention to have the alleged offenders prosecuted or convicted on the basis of insufficient or inadequate evidence.

I don’t want to be misunderstood: I am not saying that the evidence against interrogators and government officials suspected of torture is insufficient or inadequate.  I am simply pointing out that although CAT requires the US to refer those suspects to the competent authorities for prosecution, it does not require the competent authorities to actually prosecute them.  The authorities could still decline to prosecute on the grounds of insufficient or inadequate evidence.

That exception is obviously troubling, given how politicized and corrupt the Justice Department became under the Bush administration.  A horrible administration, however, is not license to reinterpret the US’s obligations under CAT.  We don’t need a stronger Convention.  What we need is a better administration.  Whether Obama’s admininstration qualifies, we shall see soon enough.

UPDATE: Glenn Greenwald points out, in response to this post, that “the excuses being offered by Bush apologists as to why prosecutions are unwarranted — i.e.: the torturers acted pursuant to orders, the torture was made legal under domestic law, there were exceptional circumstances — are all ones that are explicitly barred by the Convention as grounds for failing to prosecute torture.”  I completely agree.