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JD: Also, when talking to Ms. Gross you said that you did not think that David Addington and others involved in torture were likely to be travelling outside the United States. Do you know for a fact that any country might take action? Have you discussed this with any prosecutors who could do so?
PS: This will be addressed in the epilogue to Torture Team.
JD: 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?
PS: 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.
JD: 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 U.S. officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain -- if the U.S. fails to act?
PS: 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.
What Will The Obama Administration Do?
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.
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