Do we still pretend that we abide by treaties?

by Glenn Greenwald

On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials "who authorized torture or other outrages in the 'war on terror'."  Instead, Conason suggests that there be a presidential commission created that is "purely investigative," and Obama should "promis[e] a complete pardon to anyone who testifies fully, honestly and publicly."  So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.

I've already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust -- principally:  the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we've implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, "the institutional reluctance in Washington to punish political offenders").  Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.

The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994.  When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)).  And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute:  "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)).  By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.

http://www.salon.com/opinion/greenwald/2009/02/16/treaties/index.html