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by Compound F Thu Jan 15, 2009
I think Obama should skip taking his oath of office, because taking the oath will commit him to an inexorable cascade of legal mandates that he’d probably rather avoid altogether.
But, oh, damn, damn, damn! While he is not yet technically ensnared in this legal trap, he looks pretty boxed-in to tipping the first domino, because according to Article II, Section I of the US Constitution, he doesn’t have a choice about taking the oath of office.
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Unless we can do a quickie-amendment to that section of the Constitution, this is terrible news for Obama’s partisan transcendence, because as hilzoy points out, knocking over that first domino sets up a chain reaction:
(1) According to Article II, Section 3 of the Constitution, the President "shall take Care that the Laws be faithfully executed".
(2) According to Article VI 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".
(3) The United States is a party to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
(4) As Dahlia Lithwick reminds us, the Convention Against Torture not only prohibits torture, it imposes a set of affirmative obligations on its parties. Specifically, Article 6 states:
"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 [ed.: acts of torture] is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts."Article 7:
- The State Party in the 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.
And Article 12:
"Each 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 under its jurisdiction."
(5) None of the Objections entered by the United States at the time of ratification seem to affect the affirmative obligation to investigate and prosecute cases in which there is reasonable ground to believe that an act of torture has been committed.
It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution, if the officials who committed or sanctioned those acts are found on US territory. If they are on the territory of some other party to the Convention, then it has that obligation. Under the Convention, as I read it, this is not discretionary. And under the Constitution, obeying the laws, which include treaties, is not discretionary either.
Prosecuting torture is not discretionary? Well, I for one will be darned interested to hear from Eric Holder what is his perfessional legal opinion on whether waterboarding rises to the level of torture. Oh, wait: He already gave his opinion!
"Do you agree with me that waterboarding is torture and illegal?" [Senator Leahy] asks.
After tracing the history of the simulating drowning tactic to the Khmer Rouge and other troubling regimes, Holder responded, "I agree with you, Mr. Chairman, that waterboarding is torture."
Obviously, Eric Holder is a typical howling moonbat from the left-wing of the terrorist-loving Democratic party, as he deviates so objectionably from the views of his totally non-partisan predecessors, the absolutely soul-less Alberto Gonzales and Michael "Tyrant! Tyrant!" Mukasey. Holder’s views cannot possibly be in accord with the post-partisan President-elect’s views, except THEY ARE:
OBAMA: For example, Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture.
This whole "defining torture" game is beginning to stink of partisan hackery, inconsequential verbal jousting, "a false narrative unencumbered by the preponderance of the facts," without any legal ramifications, except IT’S NOT:
Bush, Cheney, and Hayden have all copped to the fact that Kahlid Sheik Mohammed was waterboarded with their blessing. If Obama and Holder believe that rises to the threshold of torture, then they are obligated to investigate and prosecute.
Worse yet, Bush’s own chief-honcho authority on military commissions refuses to prefer charges against Mohammed al-Qahtani because he was tortured:
The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."
"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.
snip[Crawford] said Bush was right to create a system to try unlawful enemy combatants captured in the war on terrorism. The implementation, however, was flawed, she said. "I think he hurt his own effort. . . . I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it."
"We learn as children it's easier to ask for forgiveness than it is for permission," Crawford said. "I think the buck stops in the Oval Office."
As Dahlia Lithwick and Phillippe Sands note:
The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.
This is why Obama should refuse to take his oath, if he doesn’t want these dominoes to fall. The door to the do-nothing option is now closed.
