HENTOFF: Still a nation of laws, not men?

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By Nat Hentoff

COMMENTARY:

President Obama insists he will not prosecute CIA operatives who engaged in the Bush administration's "enhanced interrogations" - although he recently released many of those authorizing "torture memos." In doing so, he admitted they reveal "our losing our moral bearings" (The Washington Post, April 21).

Yet the president also decided not to urge an investigation of those lawyers and others who "legitimized" these techniques because that would "involve a host of very complicated issues."

Mr. President, allow me to uncomplicate - for you and other interested Americans - the actual, specific U.S. laws and international treaties the CIA has systematically violated during interrogation of terrorism suspects. But weren't the CIA operators acting with legal approval from the very top of the chain of command? On April 22, the Senate Armed Services Committee, after a very extended investigation, released an answer to that use of the Nuremberg Defense. ("We were following orders.") "The fact is," the report made clear, "that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees." There was never a lawful basis for torture.

This, therefore, is the first of an intermittent series on what these war crimes were, and under which laws. In citing violations of international treaties we have signed and ratified, I remind the president that under Article 6 of the U.S. Constitution, "all treaties made, or which shall be made, under Authority of the United States, shall be the supreme law of the land."

To begin: The U.N. Convention Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment is the primary international law on torture. Signed by President Reagan in 1988, it was ratified by the Senate in 1994. It states: "Each State Party (signatory) shall ensure that all acts of torture are offenses under its criminal law." We have done that in the U.S. War Crimes Act (1996) and the Torture Victims Protection Act (1991).

The Convention Against Torture adds - very significantly for the current debate - "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. ... An order from a superior officer or a public authority may not be invoked as a justification of torture." We also have signed the Geneva Conventions, Article 146 of which mandates that each contracting party "shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches [of the Geneva Conventions] - and shall bring such persons, regardless of their nationality, before its own courts."

You hear that, Mr. President? Moreover, Article 3 of the 1949 Geneva Conventions, which has been made part of our law, requires that any person - whether a prisoner of war, unprivileged belligerent, terrorist or noncombatant, is guaranteed freedom from "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment," including denial of process in case of trial.

These guarantees, Mr. President, apply "in all circumstances" and "at any time and in any place whatsoever." Maybe when professor Barack Obama was teaching constitutional law at the University of Chicago, he did not have occasion to teach a course in international treaties that have become embedded in U.S. law.

And former constitutional law litigator Glenn Greenwald (Salon, April 17) reminds us of the Charter of the International Tribunal at Nuremberg (Article 8), in which we were involved. "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." But there was a much-praised tribunal at Nuremberg, and that defense didn't work there.

With regard to the authorizing Justice Department lawyers who creatively invented ways to leap over these laws and treaties, International law professor Jordan J. Paust of the University of Houston - in his essential book "Beyond the Law" (Cambridge University Press) - documents that "not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war ... "[These were lawyers] directly advising how to deny protections in the future, [and such] denials are violations of the laws of war and [of] war crimes." Mr. Paust adds: "The full truth about conspiratorial and complicit involvement, and the embrace of what [former] Vice President Cheney has correctly described as 'the dark side,' remains partly hidden." But, Mr. Obama, more and more of the truth will break through because, as you said on April 16, "the United States is a nation of laws." Yet you keep saying you prefer to "look forward and not engage in retribution." Being believable again as a nation of laws is "retribution"?

As Rep. John Conyers, Michigan Democrat and chairman of the House Judiciary Committee, promises (the New York Times, April 18): "If our leaders are found to have violated the strict laws against torture, either by ordering those techniques without proper legal authority or by knowingly crafting fictions to justify the torture, they should be criminally prosecuted."

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press and a senior fellow at the Cato Institute.