When President Obama released the four of the Office of Legal Counsel’s (OLC) Bush-era torture memos last week, he issued a statement promising not to pursue torture prosecutions against CIA agents who relied on the memos to justify their use of torture tactics on terrorist suspects in U.S. custody. (Notably, Obama left open the possibility of prosecuting the torture architects.) “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution,” Obama said.
But in an interview with the Austrian newspaper Der Standard, the UN Special Rapporteur on Torture, Professor Manfred Nowak, explained that Obama’s grant of immunity is likely a violation of international law. As a party to the UN Convention Against Torture, the U.S. is obligated to investigate and prosecute U.S. citizens that are believed to have engaged in torture:
STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?
NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.
Indeed, Article 2 of the convention on torture explains that “no exceptional circumstances whatsoever” can be used to legally justify torture. Further, the convention states that an “order from a superior officer or a public authority may not be invoked as a justification of torture.”
Nowak explained that by invoking the OLC’s memos as justification for the actions of CIA agents against terrorist suspects in U.S. custody, Obama is acting contrary to U.S. obligations under the treaty:
STANDARD: In other words, by making this announcement, Obama has violated international law?
NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.
In announcing his decision to release the OLC memos, Obama also suggested that he is not inclined to conduct a full investigation into the government’s use of torture. Nowak, however, said the he believes that such an investigation ought to be Obama’s highest priority. “Most importantly, there should be a comprehensive investigation undertaken by an independent body. Whether by a special investigatory commission created by Congress or by a special investigator — there are different approaches,” Nowak expalined.