No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
— Article 5 of The Universal Declaration of Human Rights1
Anthony D. Romero, the executive director of the American Civil Liberties Union, which bills itself as “the nation’s premier defender of liberty and individual freedom,” wrote a controversial op-ed for the imperialist-touting New York Times.2 In essence, by specious circumlocution, the ACLU head parlayed to the favor of the decision-makers behind crimes against humanity, namely torture, such that they escape legal punishment on the pretext that it would serve as a deterrent to such illegality in the future.
In doing so, Romero raises the possibility that torture might be legal, or that there is uncertainty as to any illegality. Romero ignores the United Nations Convention against Torture, to which the US and 80 other states is a signatory.
Article 2 of this convention states:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Physicians for Human Rights unequivocally state, “The prohibition of torture in international law is notable in that it is absolute, applying at all times and in all circumstances.”3 [emphasis added]
The Optional Protocol to the Convention against Torture, which allows for inspection of detention facilities, is unsigned by the US. This calls into question how adherence to international law can be enforced when the potential crime is hidden from independent scrutiny. It also calls into question the sincerity of a signature affixed to a statute signifying opposition to crimes against humanity.
Romero writes, “My organization and others have spent 13 years arguing for accountability for these crimes,” followed by the lament that now “… many of those responsible for torture can’t be prosecuted because the statute of limitations has run out.”
Romero is conveying a false message. Since torture is listed as a crime against humanity,4 and given that there are 54 signatory states to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and given that there are 122 signatories to the Rome Statute of the International Criminal Court, there is no statute of limitations applicable. Notably, or unremarkably, the US is not a signatory to these last two statutes.
However, in the US, there is no statute of limitations on crimes that are considered exceptionally heinous by society.5 USlegal.com provides a definition: “Heinous means hateful or shockingly evil.” I submit that heinous is an apt descriptor for torture.
Yet, Romero sees fit to praise Obama: “To his credit, Mr. Obama disavowed torture immediately after he took office, and his Justice Department withdrew the memorandums that had provided the foundation for the torture program.”
Is this disavowal deserving of credit? It is widely held that actions speak louder than words. Obama’s words have been rendered platitudinous and self-serving by his actions as torture has continued under his regime.6,7
The ACLU head notes, “But neither he [Obama] nor the Justice Department has shown any appetite for holding anyone accountable.… Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout.”
In other words, politics takes precedence over human rights and international law. Then again, Obama is on record as saying, “We need to look forward as opposed to looking backwards.”8 The illogic of this exculpatory mantra is revealed starkly on at least two levels: (1) it posits that we do not need to learn from our history, and (2) the same rationale could be applied to all designated enemies of the US.
Romero states, “Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.”
As already argued above, there is clarity that torture is a crime. Romero tenuously proffers an obfuscation of the prima facie crimes. Prosecutions are not only preferable, they must be demanded. Otherwise justice is held in abeyance, and a signal is sent that the US does not respect or adhere to international law, that future presidents and regime officials can commit heinous crimes safe in the knowledge that they will be pardoned to avoid “political fallout.”
This has farther-reaching significance for law. Law is based heavily in precedence. If US war criminals escape accountability, then why should non-US war criminals not be handled in a similar non-discriminatory manner? Or are US officials above the law?
Romero calls for Obama to “take ownership” of the decision. “If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.”
This is disingenuous. This is not the only choice. The clear and moral choice is whether to prosecute or not prosecute. Narrowing the choice to between a tacit pardon and a formal one is evading justice under the pretext of laying down a marker for future justice. On the contrary, an explicit pardon sends a message that those who torture for hyperempire, albeit prosecutable, will be pardoned … explicitly. Justice demands that torture be handled in an expeditious manner that forthrightly declares that heinous crimes will be prosecuted with the full force of the law and that such law triumphs political considerations. This sets a precedence that signals: justice will not be denied, any future transgressions will be punished.
- The United States is a signatory to The Universal Declaration of Human Rights.
- “Pardon Bush and Those Who Tortured,” New York Times, 8 December 2014.
- Physicians for Human Rights, “Prohibition of Torture in International Law.”
- See “What are crimes against humanity?,” ICC.
- See “Statute of limitations: 6.2.2 Heinous crimes in the United States,” Wikipedia.
- Shamus Cooke, “Torture Never Stopped Under Obama,” Global Research, 16 January 2010.
- Jeffrey Kaye, “Contrary to Obama’s promises, the US military still permits torture,” Guardian, 25 January 2014.
- See “Obama on Investigating Bush Crimes: ‘Need to Look Forward’,” Youtube, 11 January 2009.