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Exporting Torture, Courting Prosecution … Still

Exactly two years have passed since President Obama banned the United States from torturing captives?sort of. More precisely, he banned the United States from torturing captives directly. He left intact the option of sending captives elsewhere to be tortured.

We know this because CIA Director Leon Panetta has assured us that extraordinary rendition?i.e., kidnapping someone and sending him to a Third World dungeon, where he will all but certainly be tortured?remains a tool in the president’s toolbox. If the president has availed himself of this maul, as is likely, then he has made himself a criminal no less than his predecessor in the Oval Office did.

Their common crime is violating the UN Convention Against Torture, which Congress and President Clinton made law in 1994 (after years of stalling by Presidents Reagan and Bush the elder). The law says, “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture . . .”

Apologists of extraordinary rendition and torture have argued that our extraordinary enemy justifies extraordinary measures. But this is a canard the Convention Against Torture foresaw. “No exceptional circumstances whatsoever,” the law reads, “whether a state of war or a threat of war, internal political instability, or any other public emergency may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”

The punishment for breaking the law is a fine of unlimited amount and, if the torturer’s victim survives, imprisonment for up to twenty years. If the victim dies, the penalty could be death. The Convention Against Torture obligates its signatories to prosecute torturers within their borders, but Obama needn’t worry about a stay in the Florence Supermax anytime soon. Federal prosecutors serve at his pleasure, and any who indicted him would soon be looking for other work, not that any have shown an inclination to indict.

Foreign prosecutors, however, are not so constrained and could someday charge him under a doctrine known as universal jurisdiction. The doctrine holds that when an atrocity is (a) so grave as to constitute an assault on all peoples of the world and yet (b) goes unpunished in the country where it was committed, a prosecutor anywhere may indict and try the suspected perpetrator. The doctrine is legitimated by several international accords, including the Convention Against Torture, and by a growing body of other international and national law. It was under universal jurisdiction that Spanish magistrate Baltasar Garz?n issued his celebrated arrest warrant in 1998 for the murderous Chilean dictator Augustus Pinochet.

Is America’s outsourcing of torture so momentous a crime as to permit prosecution under universal jurisdiction? Indeed it is, for systematic torture (including systematically outsourced torture) is viewed by international law as not merely a crime but a crime against humanity. At Nuremburg we prosecuted Nazis for similarly overseeing torture?and we executed some of the guilty.

For the moment, however, Obama is safe from prosecution abroad, because the most prevalent interpretation of universal jurisdiction holds that sitting officials are immune from prosecution. But the younger Bush and Clinton enjoy no such immunity. (Clinton isn’t often spoken of as a criminal against humanity, but it was his White House that conceived of and ordered America’s first extraordinary rendition?then ordered several dozen thereafter.) Will Bush and Clinton remain uncharged? Will Obama? Only time will tell. Pinochet, after all, was not prosecuted until two decades after he committed his crimes. But already we know that Spanish and Italian magistrates have gathered evidence against senior Bush officials, and perhaps even against Bush himself, for authorizing torture. Exhibit A in their indictments might be Bush’s boasts of having been, as he might say, “the authorizer.” Exhibit B might be the similar boasts of former Vice President Cheney.

Obama has refused to investigate Bush’s crimes because, he says, he wants to look forward, not backward. While it is no doubt true that Obama views such investigations as backward-looking distractions, a fuller truth?one almost entirely overlooked by the media?is that were he to prosecute Bush, he would set a precedent for prosecuting himself and Clinton. There are as few Democrats who wish for his indictment as there are Republicans who wish for Bush and Cheney’s?and that will be true for quite some time. Which is why if America’s moral reckoning is to come sooner rather than later, it will probably come from the chambers of an Old World magistrate with a principled abhorrence of torturers-in-chief.

STEVE HENDRICKS is the author of A Kidnapping in Milan: The CIA on Trialwhich chronicles the CIA’s extraordinary rendition of an Egyptian cleric and the trial in Italy of the CIA kidnappers. His e-mail is Steve@SteveHendricks.org.