Patricia A. O'Malley
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Established 1993

Patricia A. O'Malley

Social Policy & Programs Consulting

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The US Must Prosecute Torture
The Constitution Says So.
​​​​December 11, 2014







 
Torture has been a topic of public dispute since 9/11. We’ve debated its definition, whether US agents tortured prisoners, whether it is justified, whether it works, and whether we should prosecute those responsible.  We have no choice.

RECENT HISTORY
On January 20, 2009 The CheneyBush administration vacated the White House.  President Barack Obama was inaugurated as our 44th president.

On January 22, 2009 President Obama issued three executive orders. The first ordered the closing of the prison at Guantanamo Bay, Cuba, and restored the prisoners’ constitutional rights. The second ordered a review of US options in dealing with prisoners. The third revoked all Bush orders that permitted torture and ordered US personnel to follow American and international law on the subject. Those are important and commendable actions. But it’s not good enough.

The Senate Select Committee on Intelligence began investigating the Central Intelligence Agency’s role in torturing U.S. prisoners in March, 2009.  Committee Chair Sen. Dianne Feinstein (D-CA) sent the classified, 6,700 page report to President Obama in April 2013.  She asked him to declassify the report’s conclusions and executive summary.  Those parts are now declassified and those 525 pages were released to the public on December 9, 2014.

So far, Obama has refused to investigate or prosecute claims that former President George W. Bush, former Vice President Dick Cheney, the CIA, and other Bush administration officials authorized and ordered the torture of US prisoners of war at Guantanamo, Abu Ghraib, and other hidden facilities throughout the world. This violates his oath of office, U.S. law, and international law. Obama can’t refuse to prosecute torture any more than you or I can refuse to pay our taxes.

U.S. CONSTITUTION

The U.S. Constitution states that the constitution and all treaties made under it are U.S. law.:
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution says that the treaty is U.S. law. The treaty forbids torture and requires us to prosecute. Therefore, even if it produces usable information, torture is illegal, no matter how many people say otherwise. The U.S. government has no excuse and no choice.  Waterboarding has been classified as torture since the Spanish Inquisition more than 500 years ago.          

UN TORTURE TREATY
In 1988, the U.S. Senate ratified the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That treaty defines and forbids torture:
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It requires every nation to prevent torture and to investigate and prosecute all allegations of torture in any territory under its command, promptly and thoroughly. There are no exceptions. War, public emergency, value of the information received, and the orders of superior officers do not justify torture.

AMERICANS WHO TORTURED ARE TRAPPED
Under the Convention and its founding charter, the United Nations has legal authority to prosecute those responsible for torture, anywhere in the world. The U.N. has prosecuted officials of the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and Lebanon for torture and other war crimes in the past. U.N. Special Rapporteur on Torture Manfred Nowak said that the U.N. might act if the US does not do so. The U.N. General Assembly would have to approve such a Resolution.

That action would permit the arrests of former President George W. Bush, former Vice President Dick Cheney, and anyone else who authorized, permitted, or participated in torturing American prisoners.

So, any American who has committed torture can be arrested on sight in any of the 165 countries which signed the treaty.  Those arrested can be turned over to the U.N. International Court of Justice for trial and punishment, if convicted.

 THE US MUST PROSECUTE TORTURE
Justice is often inconvenient, costly, time-consuming, and messy. It is always necessary. Either we follow the law or we don’t. If you think torture is acceptable, then you won’t mind if I steal your car tonight. Even John McCain said, “It’s not about what kind of people they are. It’s about what kind of people we are.”  I agree, but that doesn’t explain why he didn’t do anything about the torture while it was happening.

Torture is a crime. The people who order, commit, and excuse it are criminals.

Obama must prosecute everyone from former President Bush to the guys who poured the water. And he knows it.  If not, then he’s an accessory to the crime and he’s no better than they are. If we don’t act soon, the world community may do it for us. We can’t have it both ways.

For more information
Read the Constitution
UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
United Nations Treaty Collection
Senate Intelligence Committee Report Summary
Amnesty International:  Stop Torture Campaign


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