Daphne Eviatar makes an interesting point. The Bush Office of Legal Counsel (OLC) issued legal advice that justified torture making it extremely hard for torturers to be prosecuted in the United States. But those legal memos have no effect on international law, nor do they obviate our treaty-obligation to prosecute torturers.
In the United States, meanwhile, prosecutors and former Bush officials have consistently maintained that the same memos that Spain is now investigating as possible violations of international law actually shield former U.S. officials from prosecution here…
Even as Obama and Holder say they want to look forward rather than backward when it comes to the treatment of detainees and anti-terror policy, the growing number of foreign prosecutions and domestic reports producing evidence of criminal conduct may eventually force their hand.
Nothing makes Republican heads explode more than the idea that we would put international law above our own, but it’s actually part of the Constitution that we abide by treaties.
…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 United States signed the UN Convention Against Torture treaty in 1988 and ratified it in 1994. Therefore, the treaty’s provisions are not international law anymore, but the supreme Law of the Land. Nothing that Dick Cheney dreamed up can change that, and the OLC’s memos notwithstanding we are obligated by our own laws to prosecute those that engaged in and ordered torture. It’s a damn shame that those people include a former president and vice-president, but that’s the reality. Spain is going to indict six underlings soon, but it’s our responsibility.