Does CAT Require the Prosecution of Torturers? (Updated)

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/01/19/does-cat-require-the-prosecution-of-torturers/

11 Responses

  1. “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

    “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

    “Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

    “In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.”

    Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

  2. For a discussion of whether there is discretionary prosecutorial authority under international human rights and humanitarian law and U.S. law for torture, see Francisco Forrest Martin, et al. , International Human Rights & Humanitarian Law 90-96 (Cambridge Univ. 2006); Martin, Challenging Human Rights Violations: Using International Law in U.S. Courts (Transnational Publs. 2001).  It is my conclusion that there is no such authority.

  3. Wouldn’t you have a seperation of powers problem to the extent that the CAT, to any degree, can be read as taking away the exectutive brache’s ability to exercise prosecutorial discretion.

  4. NSD,

    That’s an important point which on which there is great confusion. Treaties are enacted by the executive branch — how could there possibly be a separation of powers problem?

    Indeed, even ratification is an act of the executive to which the Senate merely consents. Further, a treaty is by nature a contract, and it’s obvious that any contract is only valid to the extent the parties are competent to perform whatever it requires; hence, it follows that any contract involves limiting powers which would otherwise be unrestrained.

    The existence of a separation of powers conflict here is a figment. In the case of the Geneva Conventions, they were signed under Truman in 1949, ratified by Eisenhower in 1955, and explicitly executed and reinforced by federal criminal statutes under Clinton in 1996 and 1997. The notion that there’s a separation-of-powers conflict in any of that is purely a figment of the fraudulent Cheney / Addington / Yoo theory of presidential war powers.

    Charly

  5. Charles,

    So your opinion is that a branch of the government can contract-away its constitutional authority?

  6. Prosecutorial discretion or not? The possible and plausible answers to this question (or at least the contending reasons that animate the differences) suggest evidence in favor of William Eskridge’s theory of dynamic statutory interpretation on the plane of international law, do they not?

  7. It appears the new non-horrible administration will continue enhanced interrogation techniques, only secretly. 
     
    http://dreadnaught.wordpress.com/2009/01/17/president-obama-to-continue-enhanced-interrogation-techniques/
     
    Would any of these techniques qualify as torture?  Is there a list of acts that qualify as torture?  If not, how would one know if he is violating the law?

  8. NSD,

    Is that supposed to be a question?

    It’s entirely obvious that the USG can do precisely that in the event that it decides to cede territory to another country or allow a territory to become an independent nation.  It’s equally obvious that the Constitution can only be amended by the amendment process, and that one does not in any sense “contract away” powers by exercising them.

    Are you suggesting that Congress is “contracting away” it’s powers every time they enact a law, or is it just that you don’t think that Congress and the President have to obey the laws they jointly enact?

    Charly

  9. “entirely clear” …. you remind me of Demi Moore’s character in A Few Good Men

    DM: But your honor, we strenuously object.

    Anyway, Charly, I know you don’t argue from authority, but there is a whole heck of a lot saying you are dead wrong.

  10. NSD,

    Give me a break.  What I said was obvious is obvious.

    As for me being wrong, say-so isn’t a refutation — you’re just blowing hot air.

Trackbacks and Pingbacks

  1. […] or authorized waterboarding and to prosecute these people under CAT. (Eric Posner and Kevin Jon Heller are not so sure about this point of view, making references to CAT […]