Tuesday, April 21, 2009

Must the U.S. Extradite Alleged Torturers if they are not Prosecuted Domestically?

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


Sobek said...

And speaking of "torture," Obama's Director of National Intelligence notes that Obama redacted out information that the CIA interrogation methods worked:


Now why would Obama want to keep that information out?

Neil H. Buchanan said...

“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

Sobek said...

I'm not sure which part of "was valuable in some instances" you think is unconvincing. Especially considering that Adm. Blair's statement last night was a butt-covering maneuver made after his more candid assessment was redacted.

"...the damage they have done to our interests far outweighed whatever benefit they gave us..."Speaking of pure speculation. And it is flatly contradicted by the CIA: http://www.cnsnews.com/public/content/article.aspx?RsrcID=46949

Tell me this, Prof. Buchanan, how many American lives is it worth to be able to tell the world we don't waterboard? If you had to choose between putting KSM on the waterboard for five more minutes, and letting 3,000 Americans die, which would you choose?

Sobek said...

And just as a reminder, I find it nothing short of hilarious that more American journalists have been waterboarded to demonstrate how awful Bush is than actual terrorists.

Sobek said...

I have a question that goes more to the heart of the post:

Extradite to where? Any country that asks?

Paul Scott said...

"If you had to choose between putting KSM on the waterboard for five more minutes, and letting 3,000 Americans die, which would you choose?"

Why didn't you play 5, 24, 37, 47, 52 + 6 in last week's megamillion Lottery? Seriously, if you had to choose between $1 today or $130,000,000 amortized over 30 years, which would you choose? Obviously, you choose to keep your dollar, but that makes no sense at all.

Sobek said...

Paul, the odds of getting actionable intelligence from Khalid Shaykh Mohammed are rather better -- as admitted by Obama's own National Security chief, in case you missed that point -- than of me winning the lottery.

Liberals want to cut the Gordian knot -- there is no difficult decision to be made because waterboarding never works, and therefore there is no reason whatsoever not to reap the benefits of publicly announcing we will no longer waterboard.

But as the saying goes, you're entitled to your own opinions, but not your own facts. You can't cut the Gordian knot by wishing it away, or burying your head in the sand, or wringing your hands about why Iran doesn't like us (hint: because their government is run by religious nutjobs). The fact -- again, admitted facts, although Obama thought it more important to omit them from the press release -- is that waterboarding KSM saved lives. And Obama apparently thinks it might be okay to prosecute the people who saved those lives. Prof. Dorf is willing to consider extraditing those people -- who saved American lives as part of their job descriptions -- to God knows where.

So the question again. Knowing for a fact that waterboarding stopped an al-Qaeda attack on Los Angeles, and therefore saved American lives, would you have put KSM on the waterboard one more time? Will you answer the question, or just wish it away?

Sobek said...

If I may recommend a topic for a new post around here, I would love to have someone explain to me why the Constitution requires New Haven, Connecticut to discriminate against people solely on the basis of race, and why that's perfectly consistent with the 14th Amendment.

Patrick S. O'Donnell said...


Given your keen interest in the topic, I'm sure you'll want to read any items in this list that might have escaped your attention: http://ratiojuris.blogspot.com/2009/04/torture-moral-legal-political.html

heathu said...

Actually, torture did not stop an attack on LA: http://www.slate.com/id/2216601/

Sobek said...

Heathu, so I can basically accept the analysis of a Slate writer, or the CIA. Let me think about that and get back to you.

While I'm cogitating, I'll note that you seem to cling to the assertion that torture never works, so there is no moral dilemma in giving it up (I'm assuming for the sake of argument that waterboarding is torture). But you cling to that assertion contrary to the DNI. You know, the guy who gets paid to know about such things. The fact is, interrogation works, and so there is a moral dilemma. You guys don't want to answer my question? Fine. But someone has to answer it. Someone is in that room with KSM threatening another attack, and has to decide how serious we are about saving American lives.

(Okay, I'll admit that just because Obama nominated someone to work for him doesn't mean that someone has the foggiest idea what he or she is talking about. I'm looking at you, Janet "illegal immigration isn't illegal" Napolitano)

Sobek said...

Patrick, that's an impressive list, and it will take some time to get through. Just the list, I mean -- the referenced materials will take much longer. Who knows, maybe I've already read some of them in law school.

Paul Scott said...

People are not answering your question, I think, in part because the answer is obvious. That is, if I have on one hand a choice of whether to subject a person to 5 minutes of water-boarding. The result in your hypo is, if (Yes) = save 3000 lives, if (No) = 3000 dead. I would have myself subjected to 5 minutes of water boarding to save 3000 lives, of sure, I would also subject someone else to it in face of your hypo's absolute certainty of result. Since that certainty is entirely absurd, I don't think it really deserves an answer (but there, you have it anyway).

It is likewise the case that even if we accepted as true that in one case torture *did* result (possibly causally, possibly not) in the prevention of an attack, that, again, is not terribly relevant to the question. Because you cannot know in any one case whether torture will result in useful information that will save "innocent" lives, you have to decide on your torture policy (binary for now, but it would clearly not have to be) independent of some anecdotal evidence.

My, limited, knowledge of torture is that by in large it does not provide usable, useful information. You retort, that *in this case* the CIA concluded it did, is not, therefor, terribly instructive. Further, it is very clear from the limited information that we do have from the detainee's from GitMo and elsewhere that by in large, even if the techniques were effective, under Bush (at a minimum, and likely under any administration) that the persons that would be subjected to torture would simply have no information to give.

All of this does not even touche the moral implications (which, though in the minority - both here and elsewhere - I personally find dubious. For me, I am only interested in "morality" to the extent it can be shown to be a genetic imperative. More often than not, "morality" is nothing more than a guise for CBA (which stands fine on its own) or a cover for "It's wrong, but I can't articulate why"). From my view, torture is bad policy because of CBA - it fails often enough to provide usable information, it results in harm to innocents and it places the US in a position more difficult to defend against its own citizens being tortured.

Sobek said...

"...in face of your hypo's absolute certainty of result."I'll concede there's no absolute certainty of result. I will also submit that if you have a high-ranking terrorist mastermind who is telling you "soon you will know" about his next plot, you are a lot closer to absolute certainty than you are with Random Jihadi.

"...under Bush (at a minimum, and likely under any administration) that the persons that would be subjected to torture would simply have no information to give."That is an extremely dubious assertion, because the Bush administration only waterboarded two people (out of about 800). Liberals feverishly fantasize that half the population of Afghanistan has been tortured just to keep CIA guys in practice -- not so. Only those with a high probability of having actionable intelligence.

"From my view, torture is bad policy because of CBA..."Well then let's analyze. Two people were waterboarded, out of nearly 800 (approximately). That produced intelligence that the CIA believes saved (potentially) thousands of American lives. In return, a bunch of people who are willing to strap explosives to themselves or their own children are slightly more angry at America.

Sounds like a pretty clear trade-off, to me. And you essentially concede as much, when you say you would subject yourself or others to waterboarding to save 3,000 lives.

Sobek said...

Oh, and Nancy Pelosi conceded the point on cost-benefit analysis, too. At least, until she realized she could make political hay out of it.

Sure, she now denies she knew waterboarding was happening, even though the administration told her what it planned on doing. A conservative blogger made the perfect analogy: this is like parents watching their children stock the house with condoms and beer, and then acting shocked when the find out the kids had a party while the parents were away. What on earth did you think they were planning on doing, making condom-beer balloons?

Okay, the conservative bloggers I read tend to be pretty dirty.

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