Earlier this week, Susan Crawford, the former Inspector General of the DoD and Court of Appeals for the US Armed Forces, and convening authority for the military tribunals trying terror suspects, stated flatly that Mohammed al-Qahtani , the "20th hijacker" on September 11th, couldn't be tried because he had been tortured. Dahlia Lithwick and Philippe Sands write that the admission by a top government/military official that the United States has committed torture changes the game:
Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.
I'm not sure how the obligation to prosecute would square with the very strong American legal tradition of prosecutorial discretion. Typically, decisions by the government not to prosecute aren't reviewable in court, so I don't know what mechanism could force the Justice Department to prosecute if the President and AG decide not to.
This does, however, bring significantly more pressure onto the incoming Obama administration to do something about looking into the Bush Administration's torture policy. What that something should be I don't quite know.
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