In my latest FindLaw column (available here some time Wednesday afternoon), I argue that if the Obama Administration ultimately decides not to prosecute anybody for committing torture during the Bush years, the President ought to consider pardoning all those involved---and simultaneously explaining that the pardons are meant to acknowledge rather than deny wrongdoing. Here I want to raise a related concern.
Under Article 7 of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signatories are obligated either to extradite violators or to submit their cases to the "competent authorities" to consider bringing charges. These competent authorities, the provision goes on, "shall take their decision in the same manner as in the case off any ordinary offence of a serious nature under the law of that State." President Obama or his aides seem to be keenly aware of that provision, because earlier today he told reporters that he would leave the decision whether to prosecute the architects of the Bush policy to the Attorney General.
Suppose, however, that the Justice Department decides not to seek prosecutions for a combination of two sorts of reasons I discuss in my column: 1) the likely difficulty of obtaining convictions; and 2) the harm that lengthy trials would do to the country. Would that count as a "decision in the same manner as in the case off any ordinary offence of a serious nature?" It's hard to know because there are no exact parallels in the context of conventional crimes.
If a decision not to prosecute (with or without an accompanying decision to grant pardons) does not satisfy Article 7, then the U.S. would be under an obligation to extradite suspects sought by other countries or international authorities. That obligation would not be domestically enforceable, however, because the Senate ratification off the UN Convention includes a reservation specifying that it will not be treated as self-executing, and no federal statute implements the prosecute-or-extradite imperative of Article 7.
Still, even a non-self-executing treaty creates inter-sovereign duties on the United States. It would be quite awkward for a President who has made renewed multilateral cooperation a centerpiece of his foreign policy to breach an international human rights treaty in such a high-profile case.
Posted by Mike Dorf