A Brief Concerning Impeachment Implications of Bush Administration’s Admission of Torture

note: Annie invited me to post the following, which is modified from the original version I faxed to my representative. The content is a synthesis of work by a variety of authors. Readers are encouraged to use in any manner - no permission required.

This brief is an attempt to concisely present a new angle by which the President could be held accountable for illegal behavior.

This brief is predicated on 2 items:

• An admission of fact by an Administration official of behavior contravening a binding treaty, UN Convention Against Torture and Other Cruel, Inhumane, and Degrading Treatment or Punishment (CATCIDT).

and

• The legal obligation for Congress to act according to provisions of that same treaty

The brief is supported by:

1) a citation of White House admission of torture and

2) supporting documentation, in the form of pertinent articles from the text of CATCIDT.

ADMISSION OF FACT:

 

• “On Feb. 5, Hayden admitted to Congress that the CIA had used waterboarding on Khaled Sheik Mohammed and two others.”
• “…the White House this week made clear its view that waterboarding has saved American lives… “

(Published in Time Magazine 6 Feb 2007 by Adam Zagorin – “New Charges of Gitmo Torture” http://www.time.com/time/nation/article/0,8599,1710491,00.html)

Note: UN CATCIDT, to which the U.S. is a signatory (having signed, ratified, and implemented) allows for absolutely no exception to prohibition on torture. There are no extenuating circumstances, not even “saving lives” [Article 2.2].

Article 2.2

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.

CONGRESSIONAL OBLIGATION:

• It appears that the Congress no longer has a choice whether to prosecute, in this case impeach, because that would be a violation of the treaty. Please see Article 12 below.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

• It appears that Congress is further obligated to punish. Please see Article 4.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

• The Congress and the Administration cannot abrogate the treaty either because of this in Article 31:

Article 31

1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

[Note: Signatories can't abrogate the treaty while there is an accusation pending. It doesn't absolve the accusation, and this Congress and President won't be around long enough for the one-year withdrawal period.]

 

CONCLUSION:

It seems there is reason to believe that the Congress has to proceed with investigations, and those investigations must be impeachment investigations. The Justice department cannot do the investigation; it is implicated, having written the opinions supporting the system of torture. In an impeachment investigation, there is no claim of executive privilege.

The compelling development is the admission of water-boarding, which up until now the Administration has refused to acknowledge. (Perhaps they have determined that enough time has elapsed that it is now politically feasible to do that, that the U.S. citizenry has “acclimated” to the idea.) However, if my understanding of the treaty implications is correct, they have made a tactical miscalculation, creating an opening for legal action against them, by virtue of the water-boarding disclosure.

Respectfully submitted

Appendix: selected pertinent articles from UN CATCIDT

Article 1

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. 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.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.