Phillipe Sands: 140 countries may have jurisdiction over the torturers in the criminal Bush regime
Phillipe Sands is an expert on torture and international law. John Dean interviewed him:
JOHN DEAN: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you – and others with your expertise and background – have sufficient information to call for other countries to take action if the Obama Administration fails to act?
PHILLIPE SANDS: Last week's intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: "The Turning Point: How the Susan Crawford interview changes everything we know about torture"). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.
QUESTION: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?
ANSWER: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last.
UESTION: Do you believe that a failure of the Obama Administration to investigate, and if necessary, prosecute, those involved in torture would make them legally complicit in the torture undertaken by the Bush Administration?
ANSWER: No, although it may give rise to violations by the United States of its obligations under the Torture Convention. In the past few days there have been a series of significant statements: that of Susan Crawford, of former Vice President Cheney's confirming that he approved the use of waterboarding, and by the new Attorney General Eric Holder that he considers waterboarding to be torture. On the basis of these and other statements it is difficult to see how the obligations under Articles 7(1) and (2) of the Torture Convention do not cut in: these require the US to "submit the case to its competent authorities for the purpose of prosecution". What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards ("authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State") and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.
And, of course, we all hope the administration does the right thing:
QUESTION: Finally, you mentioned the case proceeding in the UK regarding possible torture of a British national. Is it possible that even an American ally like Great Britain could seek extradition, and undertake prosecution, of US officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain – if the US fails to act?
ANSWER: It is possible. The more likely scenario, however, is that which occurred in Senator Pinochet's case: the unwitting traveller sets foot in the wrong country at the wrong time.
As all who have followed this issue know, President Obama hedged after he was elected as to what he may or may not do. So too did his Attorney General nominee. After Eric Holder declared waterboarding to be unlawful, no one on the Senate Judiciary Committee truly followed up as to what he was going to do, but it appears they are going to now press him on that point.
My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be "change we can believe in" if the new administration harbors war criminals – which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?
One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence – the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.
We must all hope that the Obama Administration does the right thing, rather than forcing another country to clean up the mess and seek to erase the dangerous precedent these people have created for our country. A first clue may come when Holder resumes testifying.
No matter what the canaille of the Village might wish.