Manfred Nowak, the U.N.’s special rapporteur on torture, proclaimed yesterday that the United States must prosecute the lawyers who drew up the torture memos and that if we fail to do so it is the duty of other states to step in and bring charges.
In my New Atlanticist piece, “UN: United States Must Prosecute Torture Lawyers,” I wonder how the lawyers can be responsible but not President Bush and Attorney General Gonzales.
As a practical matter, however, it is virtually inconceivable that the United States would prosecute a former president or attorney general for carrying out activities of questionable legality against non-citizens under color of national security. But there’s no concept of law, at least within a Republic, in which mid-level officials carrying out the orders of their superiors are culpable and their superiors are not.
There’s some pressure on President Obama from some senior leaders of his party in Congress to take action here but I’m betting he won’t. Presidents have historically been loathe to seek criminal sanctions against predecessors and their staff for actions related to their official duties, lest their own power be diminished. According to the Convention and Nowak, then, that means it’s up to other states to act. After initially indicating it would do so, Spain has demurred. As Bernard Finel has noted, for any European state to take action here would create a crisis in transatlantic relations.
This may be one of those times when, as Peggy Noonan infamously suggested, we just “walk on by.”
