Posted May 1 2009
By Martin Flaherty, Leitner Family Professor of International Human Rights Law at Fordham School of Law
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Opponents offer a more muddled rejoinder based less on law than on politics. Prosecuting those responsible for torture may respect the law, but the political cost is simply too high. Domestically, pursuing such individuals may be seen as partisan, and so undermine support for initiatives that may require votes from both sides of the aisle. It might also lead to retribution, fair or not, down the road should the GOP rise from the
dead. In foreign affairs, further revelations could only further damage our image abroad no matter how deft President Obama has been at rehabilitating the world's opinion of the U.S.
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As a general matter, international law does more than merely provide a basis for holding accountable governments and officials who violate fundamental human rights. It makes
probing of credible allegations mandatory. It requires that governments provide victims of abuse with a right to file a complaint and a venue to do it. And it also compels governments to provide victims with an adequate remedy.
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The United States, then, has subjected itself to clear international obligations to determine the truth underlying credible allegations of torture. But why should this matter? It should matter for at least two sets of reasons: one legal, one political.
International law makes a meaningful investigation into government torture and other fundamental rights violations obligatory, not discretionary. If the United States wants to make good on these legal duties, it has little choice. True, no international court is going to order an international police force to compel the U.S. to obey the law. A legal obligation is nonetheless a legal obligation. And in purely practical terms, U.S. refusual to live up to its international legal obligations makes it harder for the nation to do business with other countries.
Politically, reliance on our international law obligations undermines that charge that any investigation is politically motivated. Rather, it is something we have promised the world that we will do, promptly and impartially. And as the world has shown in the last eight years, the nation only increases its stature abroad when it promotes the rule of law instead of showing it contempt.
Frankly, I don't buy the "political cost" argument against prosecution. If an investigation is mandatory, individuals found to have broken the law should be held accountable.
By Oren Gross
Special to CNN
Editor's note: Oren Gross is Irving Younger Professor of Law and director of the Institute for International Legal & Security Studies at the University of Minnesota Law School. Between 1986 and 1991, he was a senior legal advisory officer in the Israeli Defense Forces' Judge Advocate General's Corps. He is co-author of "Law in Times of Crisis: Emergency Powers in Theory and Practice" with Fionnuala Ní Aoláin.<...>
Al Qaeda does not pose a threat to the United States' (or any of its allies') existence. Its real threat lies in provoking us to employ authoritarian measures that would weaken the fabric of our democracy, discredit the United States internationally, diminish our ability to utilize our soft power and undermine our claim to the moral higher ground in the fight against the terrorists.
In other words, the critical threat is not that the United States would fail to defend itself but that it would do so too well and in the process become less democratic and lose sight of its fundamental values. "Whoever fights monsters," warned Friedrich Nietzsche, "should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you."
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The Bush administration, euphemistically seeking to employ "coercive" interrogation techniques against al Qaeda detainees, pursued three major strategies of implausible deniability to bypass the uncompromising legal ban: It denied that certain national and international laws that prohibit torture applied to certain categories of detainees (a position squarely rejected by the Supreme Court in its 2006 Hamdan decision), it denied that the "United States" was engaged in torture (while, at the same time, outsourcing the business of torture to other countries), and it also denied that the United States was engaged in "torture."
Orwellian legal constructions and definitional wizardry by lawyers demonstrating small-mindedness, technocratic reasoning, ideological motivation, and I-just-followed-orders mentality facilitated this last claim.
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