[Peace-discuss] U.S. a nation of laws? G. Greenwald

[Brussel Morton K.]

Friday April 17, 2009 05:44 EDT

Eric Holder v. America's legal obligations

Can anyone reconcile these?:

Barack Obama, yesterday:

     In releasing these memos, it is our intention to assure those who  
carried out their duties relying in good faith upon legal advice from  
the Department of Justice that they will not be subject to prosecution.

Eric Holder, yesterday:

     It would be unfair to prosecute dedicated men and women working  
to protect America for conduct that was sanctioned in advance by the  
Justice Department.

Convention Against Torture -- signed by Reagan in 1988, ratified in  
1994 by Senate:

     Each State Party shall ensure that all acts of torture are  
offenses under its criminal law (Article 4) . . . . The State Party in  
territory under whose jurisdiction a person alleged to have committed  
any offense referred to in article 4 is found, shall in the cases  
contemplated in article 5, if it does not extradite him, submit the  
case to its competent authorities for the purpose of prosecution.

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

Geneva Conventions, Article 146:

     Each High Contracting Party shall be under the obligation to  
search for persons alleged to have committed, or to have ordered to be  
committed, such grave breaches, and shall bring such persons,  
regardless of their nationality, before its own courts.

Charter of the International Tribunal at Nuremberg, Article 8:

     The fact that the Defendant acted pursuant to order of his  
Government or of a superior shall not free him from responsibility,  
but may be considered in mitigation of punishment if the Tribunal  
determines that justice so requires.

U.S. Constitution, Article VI:

     [A]ll Treaties made, or which shall be made, under the Authority  
of the United States, shall be the supreme Law of the Land.

I agree entirely that it is the DOJ lawyers who purported to legalize  
torture and the high-level Bush officials ordering it who are the  
prime culprits and criminals, as compared to, say, CIA agents who were  
proverbially just following orders and were told by the DOJ that what  
they were doing was legal.  But leave aside the question of whether  
prosecutions would produce good or bad outcomes.  After all, the  
notion that the law can and should be ignored whenever we think doing  
so would produce good results or would constitute good policy was the  
engine that drove Bush lawlessness.  If, as Barack Obama proclaimed  
yesterday, "the United States is a nation of laws" and his  
"Administration will always act in accordance with those laws," isn't  
it the obligation of those opposing prosecution to justify that  
position in light of these legal mandates and long-standing principles  
of Western justice?  How can they be reconciled?

-- Glenn Greenwald
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