Leon Panetta, US President Obama’s nominee to be Director of the CIA, stated in his confirmation hearings last Thursday that he believes waterboarding to be torture (see here). This is the third admission in recent weeks by senior US officials (or prospective officials) that the US has tortured some of the persons detained now detained in Guantanamo Bay. Similar statements were made by Susan Crawford, Convening Authority for the Military Commisions (see here) and by the new Attorney General Eric Holder (see this Youtube clip). These statements have given rise to intense discussions about whether the US is under an obligation to prosecute those CIA officials who participated in the interrogations and higher level administration officials who approved them. It is therefore of particular interest that Leon Panetta stated categorically that the US will not prosecute those CIA officials who had been involved in harsh interrogations (see here).
Kevin Jon Heller and Philippe Sands have an excellent exchange at Opinio Juris (see here and here) pointing out that under Art. 7(1) of the Torture Convention, the US’ obligation is not quite to prosecute but to submit the cases to its competent authorities for the purposes of prosecution. Those authorities may then apply the standards they would ordinarily apply in cases of ordinary crimes in order to decide whether to initiate prosecution. So, the prosecuting authority may take into account considerations like the availability of evidence, the likelihood of success and, in a system with prosecutorial discretion, issues of policy. Of course, it should be pointed out that a failure by the US to prosecute persons involved in waterboarding or other forms of torture may still be subject to prosecution under the universal jurisdiction scheme of the Torture Convention.
In this post, I intend to raise some legal issues that arise with regard to the liability of US officials for torture and consider whether those legal issues might justify a decision not to prosecute particular officials.
Prosecution of CIA Officials: The first question is whether there may be legal (as opposed to policy) considerations justifying the refusal to prosecute the CIA officials who carried out the torture. Read the rest of this entry…