The Convention ratified by the U.S. Senate makes it the "supreme law of the land" as per Article VI Clause 2 of the Constitution,
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Importantly, Article One of the Convention's definition of torture includes not only acts committed by Public Officials but also the acts to which they acquiesced. The convention states,
"For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental is intentionally inflicted by...or at the instigation of or with the consent or acquiescence of a public official:.
"....prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity"(CRS-6,Page9)
It is the responsibility of Senators who oversee CIA activities "to intervene to prevent such activity"---to put an end to the CIA's violations of the laws against the use of torture. Instead, these Senators approved and encouraged CIA torture by not acting to intervene. Mukasey's refusal to declare that waterboarding is illegal must be seen against the backdrop of this Senatorial silence and complicity.
Senator Lindsay Graham made the point,
In the light of these revelations, it is now understandable why Democratic Senators Charles Schumer and Dianne Feinstein voted in the Senate's Judiciary Committee to support the appointment of Michael Mukasey for United States Attorney General. Mukasey, by his refusal to admit the illegality, the criminality of the waterboarding method of torture, was assuring the Senators that had been briefed on the use of torture by the CIA that in his tenure as United States Attorney General he would not focus on their failure to intervene since as far as he was concerned congress had passed no law designating waterboarding as torture.
An exception was Committee Chair Democratic Senator Patrick Leahy: he voted against the appointment of Mukasey in part because of Mukasey's refusal to recognize waterboarding torture as illegal and criminal.
The members of Congress who were advised by the CIA that torturing prisoners, including waterboarding, was being used included Rockefeller, from the family that is reaping an added fortune in billions of dollars from their oil, gas, and finance international conglomerates during the invasion and occupation of Iraq; Pelosi that voted for and continues to vote to fund the invasion and occupation of Iraq, Afghanistan, and the Palestine beyond the internationally recognized 1948 and 1967 border between Palestine and Israel; and Jane Harman that wrote HR 1955 (now S1959) "Violent Radicalization and Homegrown Terrorism Prevention Act of 2007" to put a cap on, to criminally label criticism of the policies she has also supported---policies that are producing the slaughter of hundreds of thousands of innocents.
The Senators who were advised of the CIA's use of torture became complicit in the act of torture upon their failure to intervene in the continuing practice and, even worse, in their encouragement of the CIA's use of torture.
That, however, is not the whole of it.
Suddenly we find out now that the CIA has destroyed the tapes of its torture sessions --- the torture methods that the Senators were briefed about and where they failed to intervene ---the visual and sound version recordings of torture, possibly including waterboarding, that would make Mukasey's inability to classify waterboarding as illegal, criminal torture the mockery that it really is.
In short, the CIA destroyed the tapes---the best evidence of the illegal use of torture--- in defiance of an order of the United States District Court for the Southern District of New York in October of 2003 and May of 2004 requiring the CIA to preserve "all records pertaining to the treatment of detainees in its custody.
Obviously, the secret affairs of the Senate Intelligence Committee's illegal, criminal acquiescence to and failure to intervene in the use of torture was about to see the light of day so the CIA destroyed the best evidence of the Senators' and the Representatives' complicity.