Attorney Glenn Greenwald says that the United Nations Convention Against Torture, ratified by the United States Senate on October 21, 1994, obligates the United States to prosecute torture cases. In his article of January 18th, 2009, Mr. Greenwald makes an assertion clearly out of line with the law of the United States. It is an argument that has been repeated here in several diaries.
I will now destroy this argument.
UPDATE:A couple of Kossacks pointed out that Greenwald is pointing out the "United States" is in violation of the treaty for failing to prosecute as a matter of international law. Maybe. That is for an international tribunal to decide, a tribunal which will not use the supremacy clause as its basis for law. However, where the U.S. may in fact be in violation is in failing to impliment the treaty in such a way as to overrule prosecutorial discretion. This is the proper argument to make for a U.S. violation, and not one based on the Supremacy Clause as Greenwald does.
Mr. Greewald cites the Convention Against Torture as the basis for his argument:
This is also why the standard argument now being offered by Bush apologists (such as University of Chicago Law Professor Eric Posner, echoing his dad, Court of Appeals Judge Richard Posner in Chicago) as to why prosecutions are unnecessary -- namely: there is "prosecutorial discretion" that should take political factors into account in order not to prosecute -- are both frivolous and lawless. The Convention explicitly bars any such "discretion": "The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall . . . submit the case to its competent authorities for the purpose of prosecution." The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke ("we were dealing with real threats; there were 'exceptional circumstances' that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on").
He follows that up by citing Article VI of the constitution (The Supremacy Clause), which has be cited often here as well:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The United States Supreme Court has ruled on how treaties are to be implimented in the United States. If a treaty is considered self-executing the clear language of the treaty itself is just as applicable as Congressional law. However, if it is not self-executing, then Congress must write implementation law, determining how it tends to go about executing the treaty.
The Supreme Court defined "self-executing treaty" as
one for which "no domestic legislation is required to give [it] the force of law in the United States."
Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252
When the Convention Against Torture was ratified by the United States Senate, it was clearly understood NOT to be a self-executing treaty, meaning Congress would write the legislation determining how it is implimented:
III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing.
(2) That the United States declares, pursuant to Article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. It is the understanding of the United States that, pursuant to the above mentioned article, such communications shall be accepted and processed only if they come from a State Party which has made a similar declaration.
Senate Treaty No. 100-20, Exec. Report No. 101-30
It's clear that the Senate did not intend to comply with requiring automatic prosecution because that, by Greenwald's own admission, is in Article 4. The Senate excluded self-execution for Articles 1 to 16.
In place of this, the Senate did the following:
That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.'.
THE SENATE EXPLICITLY STATED IT WOULD IMPLEMENT 10-14 AND 16 USING FEDERAL LAW. So what exactly is the default rules in the Convention concerning said articles?
Article 10
Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.
Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
Article 14
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.
Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law.
As you can see, these articles deal with the basics of the criminal procedures with respect to torture, the ones the Senate overruled. Here were those "appropriate measures" the United States took:
A BILL
To implement for the United States the United Nations Convention Against Torture and Other Cruel , Inhumane or Degrading Treatment or Punishment .
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. PURPOSE.
It is the purpose of this Act to enact the necessary legislation to implement for the United States the United Nations Convention Against Torture and Other Cruel , Inhumane or Degrading Treatment or Punishment .
SEC. 2. TORTURE .
(a) IN GENERAL- Part I of title 18, United States Code, is amended by inserting after chapter 113A the following new chapter:
`CHAPTER 113B--TORTURE
`Sec.
`2340. Definitions.
`2340A. Torture .
`2340B. Exclusive remedies.
`Sec. 2340. Definitions
`As used in this chapter--
`(1) `torture' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
`(2) `severe mental pain or suffering' means the prolonged mental harm caused by or resulting from--
`(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
`(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
`(C) the threat of imminent death; or
`(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
`(3) `United States' includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 101(38) of the Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1301(38)).
`Sec. 2340A. Torture
`(a) Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both; and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
`(b) There is jurisdiction over the prohibited activity in subsection (a) if--
`(1) the alleged offender is a national of the United States ; or
`(2) the alleged offender is present in the United States , irrespective of the nationality of the victim or the alleged offender.
`Sec. 2340B. Exclusive remedies
`Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.'.
(b) CLERICAL AMENDMENT- The table of chapters for part I of title 18, United States Code, is amended by inserting after the item for chapter 113A the following new item:
2340.'.
(c) EFFECTIVE DATE- This section shall take effect on the later of--
(1) the date of enactment of this Act; or
(2) the date the United States has become a party to the Convention Against Torture and Other Cruel , Inhumane or Degrading Treatment or Punishment .
This is the sum total of the changes the United States made to Title 18, its body of criminal law and criminal procedure. No other changes were made. This means normal United States criminal procedure apply to torture cases. That includes prosecutorial discretion, which is a fundamental part of American law as described by the Supreme Court:
Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable. [n33] Similarly, the capacity of prosecutorial discretion [p312] to provide individualized justice is "only entrenched in American law." 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984). As we have noted, a prosecutor can decline to charge, offer a plea bargain, [n34] or decline to seek a death sentence in any particular case. See n. 28, supra. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. Georgia, 428 U.S. at 200, n. 50.
McCleskey v. Kemp 481 U.S. 279
In summary, those who argue that the Obama Adminisrtation is breaking international law by deciding not to prosecute torture cases, as Mr. Greenwald is, are clearly in error. The Senate stripped such automatic provisions and put in its place normal federal criminal procedure. That includes prosecutorial discretion, which the Adminisrtaion has decided not to exercise.
The End.