No Comment — May 6, 2009, 4:01 pm

The Enemies of All Humankind

Barack Obama appears to be in something of a quandary over the torture issue. On the one hand, he and his senior advisors clearly seem to recognize what the law requires: an investigation of the torture policies of the Bush era, conducted by a prosecutor with a clear mandate to bring prosecutions as the law requires. On the other hand, Obama believes he has met his pledge to end torture as a matter of U.S. policy, and the controversy swirling around the torture question may get in the way of his affirmative agenda—things like the restructuring of the financial services sector, health care reform, and foreign policy initiatives. On one point the White House’s desires overlap perfectly with those of the torture-enablers: they wish this whole issue would just go away. So what’s Obama to do? His White House first gave a signal that as a matter of official policy there would be no investigation or prosecution. That, of course, constituted a gross intrusion of political figures into the criminal justice system, and an embarrassed White House was forced to pull back the next day after the Justice Department made this point.

But Barack Obama does have a Constitutional role to play in this process—he has the pardon power under Article II, Section 2, Clause 1. The Justice Department has written guidelines, routinely disregarded by presidents in the past, which suggest that pardons are appropriate only when the criminal justice process has run its course and the prisoner has served his sentence. These guidelines assume, of course, that the Justice Department has properly played its role; they ignore the fact that, as is copiously evident from the last eight years, the Justice Department misfires, perpetrates gross injustices, and stubbornly refuses to own up to its misconduct. In these circumstances, it would be improper for the president to pay any attention to the guidelines, which serve the interests of the Justice Department, but not of justice. Properly viewed, the limits on the president’s pardon power come from the Constitution alone. That means that Obama would probably be free to issue a blanket and pre-emptive pardon of the torture policy makers, if he chose to do so. (The pardon power goes to “offenses against the United States,” of course, and it may not reach to a jus cogens crime like torture–that is still an open question under U.S. jurisprudence.)

But would such a pardon be effective? Inside the boundaries of the United States, the pardon would probably stand up unless a court decides that the Framers did not intend to include jus cogens crimes in the scope of those the president could pardon–not a terribly likely outcome considering the current bench, two-thirds of whose members are Republican appointees and many of whom struggle to disguise their contempt for anything “international.” But a blanket pardon, especially one that preempts specific fact-finding and avoids a determination as to individual culpability, looks suspiciously like impunity, and outside the United States, it might have some unintended consequences. First, it would probably be taken as a violation of our undertaking to prohibit torture and prosecute violators. The crime of torture is a jus cogens crime—a crime of universal applicability and enforceable subject to universal jurisdiction. And torturers have a special position in international law. As the United States Court of Appeals in New York reminds us in the landmark case of Filártiga v. Peña-Irala (1980), they are hostis humani generis, the enemies of all humankind. As such they are not entitled to legal defenses, including pardon or amnesty. And if one nation, in disregard of its obligations to the community of nations, should extend amnesty to torturers, that step has consequences. No other nation would recognize the amnesty. Moreover, under universal jurisdiction norms accepted by the United States, this would actually convey jurisdiction on other nations to punish the torturers.

A good demonstration of the operation of this principle comes out of the European Court of Human Rights in Strasbourg, Ould Dah v. France. The case involves an officer of the Mauretanian army who was tried and convicted by a court in France for acts of torture he committed while serving the Mauretanian government; the acts occurred in 1990-91 while Ould Dah was helping to run a prison during an uprising. In 1993, he received an amnesty from the Mauretanian government for any criminal acts he may have committed during the uprising. In 1998, he traveled to France as part of a military training operation between the French and Mauretanian governments. He was identified by several human rights NGOs as a torturer and they pressed criminal charges and helped introduce evidence of his crimes. But Ould Dah was amnestied, so that was the end of the matter, right?

Wrong. The Court ruled that under applicable principles of international law, flowing from the Convention Against Torture and its requirement that torturers be brought to justice or transferred to nations that would bring them to justice, other nations could not give effect to the amnesty. The prohibition on torture being absolute, no amnesty or statute of limitations shields a torturer.

So if Obama does pardon the Bush torture team, that wouldn’t be the end of it. We’d face a reenactment of the last days of Augusto Pinochet, who was amnestied by Chile and became the subject of criminal prosecutions in other countries–producing a legal tug-of-war over Pinochet’s custody that lasted until the generalissimo breathed his last breath.

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