The Washington Independent
The Washington Independent

Actually, Condi, When the President Breaks the Law, It’s Still Illegal

Former National Security Adviser and Secretary of State Condoleezza Rice’s statement to a bunch of Stanford students Monday that by definition, if it was

Tyreece Bauer
News
Last updated: Jul 31, 2020 | May 01, 2009

Former National Security Adviser and Secretary of State Condoleezza Rice’s statement to a bunch of Stanford students Monday that “by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture” — much repeated, analyzed and discussed all yesterday afternoon, and for good reason (it’s worth watching the full video, which is here) — got me wondering what exactly she was referring to.

After all, Condi isn’t stupid; is this just some alternative reading of the law that we’d all overlooked? Might those creative legal minds at the Office of Legal Counsel have somehow been able to read the U.N. Convention Against Torture to mean that torture is illegal, unless the president in some extreme circumstance says it’s not?

Well, according to my review of the text of the convention, approved and sent to the Senate for ratification by President Ronald Reagan himself, and of the implementing statute passed by Congress and signed by the president, there just isn’t any such exception.

Article I of the treaty defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Okay, nothing in there about “unless the president authorizes it.”

Here’s another piece of the law that Condi may want to be mindful of, given her statements yesterday about how exceptionally scary it all was after the attacks on Sept. 11:

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.

and

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

What’s more, contrary to the arguments of former Office of Legal Counsel head Steven Bradbury and his crew, the treaty applies not only within the actual territory of the country, such as the territorial United States, which is how the recent OLC memos described it, but “When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State.”

Now if it applies on a ship or aircraft registered to the United States but in some other countries’ waters, then surely it would apply to a clandestine CIA prison, which is by definition controlled by the United States, no matter where that prison is located.

But just to clarify, the United States, to implement the CAT, enacted 18 U.S.C. §§ 2340 and 2340A, which specifically prohibit torture occurring outside the United States:

** Conspiracy.— **

So far, then, the statute not only doesn’t include an “unless the president authorizes it” exception, but suggests that if the president authorized it, he’s guilty, too.

Now here’s where the Convention Against Torture causes real trouble, not only for the former Bushies but for the Obama administration, which is still ignoring these key passages of the treaty:

  • Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall … take him into custody or take other legal measures to ensure his presence.
  • Such State shall immediately make a preliminary inquiry into the facts.

And Article 7:

  • The State Party in territory under whose jurisdiction a person alleged to have committed any offence 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.

You know, it’s just looking worse and worse for Condi and President George W. Bush, not better.

Then again, you may have heard that when President Reagan signed the Convention Against Torture, the Senate did add certain reservations.  So I wondered if maybe the special “presidential authorization” exception was in one of those.

Nope.  The reservations, as explained in this memo from the Congressional Research Service, were that the United States would have to adopt a law to implement the Convention (which it did), and that “With respect to Article 16 of the Convention, the Senate’s advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual, and inhuman treatment or punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution.”

The Eighth Amendment, of course, bars “cruel and unusual punishment,”  and restraints on pre-trial interrogation are embodied in the due process clauses of the Fifth Amendment, protecting detainees from executive abuses that “shock the conscience.” (This explains the long discussion in the May 2005 memos about whether the CIA’s techniques “shock the conscience.”)

I won’t bore you further with statutory language, but I thought it was worth the exercise to go through the relevant laws and see if maybe, just maybe, Rice was actually reaching out to some hidden provision in the law that could possibly justify her comments to the Stanford students — which mimicked the infamous declaration by Richard Nixon that “when the president does it, that means it is not illegal.”

Nope, there’s nothing there.

[All emphasis in this post is mine.]

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Tyreece Bauer | Analyst and photographer in the field of technology. When I'm not working on my laptop, I like to go surfing, hiking with friends, and go karting or play soccer with my nephew. I enjoy traveling and am excited to visit Tokyo this summer. What are your plans for your next trip?

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