Atlantic Council

The United States is required to prosecute lawyers who authored memos approving harsh interrogation techniques in possible violation of international law, the UN's top anti-torture official proclaimed Friday.

Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal. "That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."

Nowak, an Austrian law professor, said it was up to U.S. courts and prosecutors to prove that the memos were written with the intention to incite torture.

Nowak and other experts said that a failure to investigate and prosecute when there was evidence of torture left those responsible vulnerable to prosecutorial action abroad.  "If it should turn out ... that the (U.S.) government and its authorities are not willing to prosecute those where we have enough evidence that they instigated or committed torture, then there is also an obligation on all other 145 states" party to the convention to exercise universal jurisdiction, Nowak said.

That means countries would have an obligation to arrest the individuals in question if they were on their soil and extradite them to the U.S. if Washington gave clear assurances they would bring them to justice. In the absence of such assurances, it would fall upon the respective country to take the individuals to court.

It's noteworthy that Article 2, Section 2 of the Convention states that "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and Section 3 provides that "An order from a superior officer or a public authority may not be invoked as a justification of torture."

What's unclear from reading through the Convention is why the attorneys who crafted said memos are culpable but not senior officials, including the Attorney General and the president. The parties to the Convention are, after all, states. This is especially interesting given allegations of "extraordinary rendition" of high value suspects that would seem to be in violation of Article 3, Section 1's requirement that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

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. 

That rather leaves us at an impasse.

James Joyner is managing editor of the Atlantic Council. AP Photo.