General Discussion
In reply to the discussion: Obama is BOUND BY LAW to prosecute torture. [View all]branford
(4,462 posts)First, duly ratified treaties have the force and effect of federal law. NOTHING equals or abrogates the text of the Constitution. It is the supreme law of the land, and no treaty or law can violate its terms. This is part and parcel of the Constitution's Supremacy Clause.
Second, I don't know who would have standing to compel the president to do anything under the treaty, no less commence prosecutions, and separation of powers would almost certainly prevent any court from forcing a prosecution. If the matter ever saw a US court, they could declare us in breach of the treaty. That and $2.50 and you can ride the subway in NYC.
Third, we can withdraw from the treaty at any time. If somehow ordered to prosecute by the courts, in what would be a rare moment of bipartisanship, we would withdraw from all or part of the treaty rendering the issue moot. It would hardly be the first time Congress and the president acted to circumvent a court decision.
Fourth, the treaty already contemplates that a signatory state will not domestically prosecute. The remedy is an international prosecution. Until such time as the ICC or Hague can challenge the U.S. Armed Forces or the American people are prepared to turn-over our officials to foreign courts, such a discussion is, at best, academic.