Obama is BOUND BY LAW to prosecute torture.

[MADem]

41. Do you have a link? Ah, never mind--I found a copy...

http://www.hrweb.org/legal/cat.html

Your excerpts leave me with these impressions:

--Article 4 seems to say that it is a crime.

--Article 7 seems to be talking about foreign nationals, either extradite them or prosecute them-- not citizens of the country in question. We don't extradite our own citizens, after all.

I'm not "endorsing" torture, here, but those words--ALL of them, not just the snippets-- do appear to show a loophole big enough to drive an aircraft carrier through.

Here's the full text of Article 4:

Article 4

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Hmmmm... "appropriate penalties" leaves a LOT of wiggle room. An Article 15, or a Courts Martial, could be viewed as an appropriate penalty. There's no requirement to prosecute there. Keep in mind that ART 15 is "non-judicial" punishment. Dick Cheney might find a "Letter of Reprimand" to be "appropriate" as a penalty.

Now, let's take on Article 5:

Article 5

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
When the alleged offender is a national of that State;
When the victim was a national of that State if that State considers it appropriate.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.
This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Basically, all that is saying is that you can't blow it off--you have to resolve it, one way or another. Even if you resolve it "in accordance with internal law"--like, say, the Uniform Code of Military Justice.


Now let's look at all of Article 7:

Article 7

The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.
Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

To my ear, this sounds like they are saying that you can't convict anyone on sketchy evidence, you've got to use the same rules of evidence that you would use in any other "ordinary offense of a serious nature," the bar has to be set high, and the accused is entitled to a vigorous defense. Pointing and accusing won't cut it--there needs to be proof, testimony, etc.

Again, I don't mean to be cynical, but this document is written to uphold a standard of expected and decent behavior, yet give individual countries an option and an "out" to "punish" as they see fit. Punishment could be something as benign as a "Letter of Instruction" along the lines of

Dear (Insert Name):

It has been observed that you have engaged in behaviors that might be regarded as cruel and unusual in your treatment of suspects and prisoners, specifically (list all the things the person has done wrong)..

This letter serves to advise you to cease and desist this conduct, to abide by the regulations governing the management of the prisoner population, and to direct any questions you have with regard to said management to your superior in the chain of command.

Your signature below indicates you have received and understand the contents of this Letter of Instruction.

(Signature of Head Honcho)

Signature of Recipient.........................

Now, you're not going to like this bit at all, but it's fact--Letters of Instruction are PRIVATE--they are between a boss and a subordinate, and they have an expiration date. Further, they are not punitive, and they do NOT become a part of one's "permanent record." They're designed to correct behavior. And they'd also check the block of resolving the issue within the confines of "internal law." Every single person accused of torture might have been issued an LOI, that expired after a year and was tossed into the burn bag, and no one outside the immediate chain of command would ever know about it--not the public, not the prisoners, no one. No copies are kept after the LOI expires.

Now, it might be argued that we're talking Major Poor Judgment if allegations of torture are handled with an LOI, but we'd have a hard time proving anything, since those kinds of administrative actions are designed to kick over the traces and not leave a permanent record.

Where your argument falls down is with the word "prosecute," which doesn't mean the same thing all around the world, and the text of that Convention seems to recognize and address that. Also, it's unlikely in the extreme that the USA or any other country would sign this convention if the wiggle room I have described wasn't written right into the thing. Sorry to be cynical (yet again), but that's the simple truth. Everyone loves the expression of a high-minded ideal, but no one likes being told what to do.

I certainly hope that there won't be any messenger shooting as a consequence of this post; what I'm saying is simple fact--not an endorsement.