UN Demands Torture Prosecutions

Manfred Nowak, the U.N.’s special rapporteur on torture, proclaimed yesterday that the United States must prosecute the lawyers who drew up the torture memos and that if we fail to do so it is the duty of other states to step in and bring charges.

In my New Atlanticist piece, “UN: United States Must Prosecute Torture Lawyers,” I wonder how the lawyers can be responsible but not President Bush and Attorney General Gonzales.

As a practical matter, however, it is virtually inconceivable that the United States would prosecute a former president or attorney general for carrying out activities of questionable legality against non-citizens under color of national security. But there’s no concept of law, at least within a Republic, in which mid-level officials carrying out the orders of their superiors are culpable and their superiors are not.

There’s some pressure on President Obama from some senior leaders of his party in Congress to take action here but I’m betting he won’t.  Presidents have historically been loathe to seek criminal sanctions against predecessors and their staff for actions related to their official duties, lest their own power be diminished.   According to the Convention and Nowak, then, that means it’s up to other states to act.   After initially indicating it would do so, Spain has demurred.   As Bernard Finel has noted, for any European state to take action here would create a crisis in transatlantic relations.

This may be one of those times when, as Peggy Noonan infamously suggested, we just “walk on by.”

FILED UNDER: Intelligence, United Nations, , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tlaloc says:

    Walking on by is the best way to guarantee it happens again, and worse. The only hope we have to shift the overton window back to “the US doesn’t torture helpless prisoners” is by punishing severely those who did.

  2. G.A.Phillips says:

    who gives two donkey turds on what the U.N. demands.

  3. odograph says:

    I was saying last week that this was shaping up to be an informal Truth and Reconciliation process. I didn’t think there would be formal charges, but by bringing everything public, and acknowledging it, we’d move on.

    The UN thing is a surprise for me. Perhaps some more formal Truth process would satisfy world opinion? That, and perhaps some general compensation to … the same nations we are already giving aid to. Relabeling.

  4. Rob says:

    As though all our aid has brought us goodwill.

    Withdraw from the UN, start charging the members rent for Turtle Bay, or let ’em go back to their countries and sell the property.

    When the UN faces up to Oil-for-Food, and blue-helmet child sex rings, and giving a pass to their own members’ human rights abuses, then maybe they’ll have the moral authority to demand anything from the US.

    IF we allow the UN to put US citizens on trial, we abandon our sovereignty to a group of people who do not love the US, and we abandon our own citizens.

    I swore to support and defend the Constituion of the United States, not to see it be pushed aside for some words from some unelected UN bureaucrats pen.

  5. JKB says:

    Prosecute lawyers for developing a legal opinion but not the decision makers and Congressional oversight members who approved the implementation of that opinion? So now we’re going to prosecute opinion but not action, it’s a sad new postmodern world.

    Do they really think that continued US financial and troop support of the UN will be permitted by the American people once the UN pushes this? Sure the Dems will support their fellow travelers but come 2010 they may not control the purse strings. Plus, we have the Obama debt to service so we’ll have better use for the money.

    If Obama doesn’t shut this witch hunt down, he’s in for a hard time if he ever needs to order any controversial action by the military or intelligence agencies. “Sorry sir, but I”ll need that order, handwritten, in triplicate, and signed by yourself, the Speaker of the House, the Chief Justice of the Supreme Court and the General Secretary of the UN.”

  6. just me says:

    When the UN faces up to Oil-for-Food, and blue-helmet child sex rings, and giving a pass to their own members’ human rights abuses, then maybe they’ll have the moral authority to demand anything from the US.

    This.

    If Obama doesn’t shut this witch hunt down, he’s in for a hard time if he ever needs to order any controversial action by the military or intelligence agencies. “Sorry sir, but I”ll need that order, handwritten, in triplicate, and signed by yourself, the Speaker of the House, the Chief Justice of the Supreme Court and the General Secretary of the UN.”

    Exactly.

    At this point in time I think it is key to develop a workable policy that doesn’t involve torture and clearly defines what is and isn’t okay, but going back and prosecuting this stuff will be a mistake, and I think after seeing a few prosecutions the lawyers and those asked to implement policy based on those opinions will start taking a pass and I don’t blame them.

  7. Anderson says:

    So now we’re going to prosecute opinion but not action

    A lawyer’s legal opinion *is* an action, for him.

    The story so far: CIA, with the collusion of NSA, pushes OLC into writing CYA memos that provide GOOJF cards for torturers. (Acronym award of the day?)

    That does not show that Bush or Cheney were involved; they may’ve heard “it’s legal, we need it” and signed off. I myself have been surprised thus far to hear how little Cheney is shown to be involved thus far.

    Other than where the buck stops, I don’t think that Bush is criminally liable for a conspiracy hatched by his underlings. I could be mistaken.

    (There are of course facts that could prove liability of Bush &/or Cheney, but those are debatable.)

  8. Bithead says:

    Ah, yes… the UN. The group that was so instrumental in making so many of its members rich under the table by way of the oil for food program.

    The organization that was the provider of so many young bodies for U.N. diplomats with a sexual taste for children. People who, by the way, are still being protected by the U.N. instead of prosecuted.

    The organization who has spent so much of its time defending oppressive dictatorships around the world, and has so little in the way of taste for freedom in those places where it can be found, for example the western world.

    These are supposed to be the judge and jury of what we did in terms of terrorism, while it stood by and watched the whole thing happen?

    Yeah, right.

    here’s my prescription:
    Ignore the United Nations, remove the United States from the United Nations and tell them to get their backsides out of Turtle Bay, in 30 days or less.

    Preferably less.

  9. Bithead says:

    Rob: I see after venting we agree. Sorry if I stole your fire… it wasn’t my intent.

  10. Tlaloc says:

    I swore to support and defend the Constituion of the United States,

    except, apparently, for Article 6…

  11. Tlaloc says:

    If Obama doesn’t shut this witch hunt down, he’s in for a hard time if he ever needs to order any controversial action by the military or intelligence agencies. “Sorry sir, but I”ll need that order, handwritten, in triplicate, and signed by yourself, the Speaker of the House, the Chief Justice of the Supreme Court and the General Secretary of the UN.”

    You mean government employees might do things they are authorized to do and a clear chain of responsibility may exist?

    Gods, the horror…

  12. davod says:

    “At this point in time I think it is key to develop a workable policy that doesn’t involve torture..” Enhanced Interrogations.

    You may disagree with the outcome but the OLC memos were all about defining limits based upon US law.

    “The story so far: CIA, with the collusion of NSA, pushes OLC into writing CYA memos that provide GOOJF cards for torturers Interrogators (Acronym award of the day?)” What does the NSA have to do with this?

  13. Tlaloc says:

    You may disagree with the outcome but the OLC memos were all about defining limits based upon US law.

    You meant to say they were about creating BS excuses for why clearly defined laws don’t say what they actually say. There was no attempt at “defining limits based on law.” There was an attempt to subvert longstanding US law. That such attempts were signed by a lawyer means nothing more than that those lawyers are guilty.

    A doctor who gives you a clean bill of health despite obvious cancer has not, by virtue of his statement, made you healthy. He has committed malpractice.

  14. GM says:

    Someone’s going to have to be prosecuted, otherwise, we’re never going to get past this. This is not a witch hunt, there are too many people who were involved at least partially, all up and down the government. No one knows their legal standing so it’s going to take some time before everyone sorts out their cover.

    The UN can say what they want, but it’s us (we) who will ultimately decide, and it will either dent or inflate the UN’s authority. The most important thing to do is for the US to take the bold step and police it’s own actions even if it’s in the realm of international law, if only to set the precedent that we don’t need any other country deciding on the fate of our own citizens.