A Prompt and Impartial Investigation

May 1, 2009
Guest Post

By Martin Flaherty, Leitner Family Professor of International Human Rights Law at Fordham School of Law

Debate continues over whether the United States government - prosecutors, Congress or a commission - should undertake some type of investigation into the now extensive allegations that Bush Administration officials facilitated torture and mistreatment of detainees in Guantanamo, Abu Ghraib, "black sites" and elsewhere.

But the debate appears to have stalled. Advocates of an investigation emphasize, simply and surely, the law. The Federal Anti-Torture Statute, to say nothing of the Eighth Amendment, prohibits many if not most of the techniques employed during the last eight years. If officials have broken the law, they should be tried and punished, whether Lynndie England or Donald Rumsfeld (below).

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.

Those who would investigate torture have it only half-right, since in a sense they have relied on only half the law. Beyond the domestic level, international law not only makes the argument for inquiry stronger, it makes it compelling. Fulfilling our binding obligations under international law, moreover, helps to belie false charges of partisanship precisely because they make meaningful investigation obligatory.

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.

What applies generally applies to torture. The United States is a party to the UN Convention Against Torture [CAT], a binding treaty obligation. Article 12 states that "[e]ach 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 committed in any territory."

This does not mean that anyone must be prosecuted. All it says is that there must be a "prompt and thorough investigation," by "competent authorities." But that requirement is substantial. Such an investigation could be undertaken by the FBI, a Federal grand jury convened by a U.S. Attorney, Congress or a special commission. CAT leaves it to the State Party whether evidence produced by such a prosecution must result in a criminal prosecution. In this way, CAT leaves to the domestic jurisdiction wide scope for prosecutorial discretion. But at the very least, the U.S. must undertake a meaningful official inquiry under U.S. law.

CAT also requires the United States to allow torture victims to initiate specific investigations. Under Article 13, "[e]ach 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 by its competent authorities."

Not least, international law also requires that the United States provide victims with a meaningful remedy. Article 14 of CAT commands that each country "ensure in its legal system that the victim of an act of torture obtains redress and has been an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible." In cases in which someone has died of torture, the victim's dependents are likewise guaranteed compensation.

CAT is only the most relevant source. Others include the International Covenant on Civil and Political Rights (ICCPR), which the United States has also ratified. In neither case, moreover, does it matter that these treaties have been declared non-self-executing by the Senate. The effect of such a declaration means that the treaties do not operate as the "supreme law of the land" domestically. Their obligations remain fully binding as a matter of international law.

Nor are these types of international human rights law the only basis for U.S. duties. The humanitarian laws of war contain parallel obligations. The Geneva Conventions also obligate parties to investigate torture and other mistreatment as a war crime. This obligation by definition applies to international armed conflicts such as Iraq and Afghanistan. Yet it would also apply even on the stained theory that terrorists are "unlawful enemy combatants" in a "global war on terror." As the Hamdan case made clear, even suspected terrorists receive the benefit of Common Article 3's minimal protections, including the right not to be subject to torture.

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.