Under U.S. Law Torture is Always Illegal By MARJORIE COHN

http://www.counterpunch.org/cohn05062008.html

May 6, 2008
Why John Yoo and Other Top Administration Lawyers Should be Investigated for War Crimes
Under U.S. Law Torture is Always Illegal
By MARJORIE COHN

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. Jus cogens is Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon personal dignity, particularly humiliating and degrading treatment under, Common Article 3.

In Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.




WATCH THE HEARING
rtsp://video1.c-span.org/project/ter/ter050608_guantanamo.rm

but the guy torturing him is definitely guilty of one.

http://www.democracynow.org/2008/5/8/torture_team_british_attorney_philippe_sands

AMY GOODMAN: I wanted to ask you, Philippe Sands, about the possibility of US officials being charged with war crimes. You were quoted in a New York Times piece on Tuesday: “Mr. Sands, a British law professor, said two foreign prosecutors, whom he did not name, asked him for the materials on which his book Torture Team was based. ‘If the US doesn’t address this,’ he said, ‘other countries will.’"

PHILIPPE SANDS: That’s an accurate account, and I describe, in one of the concluding chapters of the book, conversations I had with a European prosecutor and a European judge. And the committee was very interested in that, in relation to a question they asked me and the other witnesses giving testimony: “What should this committee do?” And the answer that I gave was, “Look, it’s not for me to make recommendations on precisely what you do and don’t do, but what needs to happen is the United States needs to get involved in an accounting process. The committee needs to establish the facts. And if the United States doesn’t, others will do it.” And I have no doubt, no doubt whatsoever, that investigations will take place, if they’re not already taking place, and that some of these individuals, if they travel outside the United States, will face a very real threat of investigation.

AMY GOODMAN: And the legality of what President Bush said, or the implications of it, when he said to ABC News, “We started to connect the dots in order to protect the American people. Yes, I’m aware our national security team met on this issue, and I approved”?

PHILIPPE SANDS: Well, it appears to be an admission that the President of the United States authorized torture, that he authorized waterboarding. The convention prohibiting torture, the Geneva Conventions are absolutely clear: there are no circumstances in which torture is permitted. And if the account is accurate, the President is, in effect, owning up to the fact that he has committed a war crime. And under the torture convention, there is an obligation to investigate any person who has committed a war crime. So it was a very surprising admission. I wonder if it was fully thought through. If it’s accurate, it is deeply disturbing.