VIENNA — The U.S. is obligated by a United Nations convention to prosecute Bush administration lawyers who allegedly drafted policies that approved the use of harsh interrogation tactics against terrorism suspects, the U.N.'s top anti-torture envoy said Friday.
Earlier this week, President Barack Obama left the door open to prosecuting Bush administration officials who devised the legal authority for gruesome terror-suspect interrogations. He had previously absolved CIA officers from prosecution.
Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.
"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."
Nowak, an Austrian law professor, said it was up to U.S. courts and prosecutors to prove that the memos were written with the intention to incite torture.
Nowak and other experts said that a failure to investigate and prosecute when there was evidence of torture left those responsible vulnerable to prosecutorial action abroad.
"If it should turn out ... that the (U.S.) government and its authorities are not willing to prosecute those where we have enough evidence that they instigated or committed torture, then there is also an obligation on all other 145 states" party to the convention to exercise universal jurisdiction, Nowak said.
That means countries would have an obligation to arrest the individuals in question if they were on their soil and extradite them to the U.S. if Washington gave clear assurances they would bring them to justice. In the absence of such assurances, it would fall upon the respective country to take the individuals to court.
Nowak said this happened very rarely because the international community primarily relied on the governments of countries where torture occurs to take the necessary legal action to ensure that justice is served.
Nowak also said any probe of questionable CIA interrogation tactics must be independent and have thorough investigative powers.
"It can be a congressional investigation commission, a special investigator, but it must be independent and with thorough investigative powers," Nowak said.
On Thursday, Obama's press secretary suggested Obama does not care for an independent panel.
Last week, the Obama administration released secret CIA memos detailing interrogation tactics sanctioned under Bush.
The memos authorized keeping detainees naked, in painful standing positions and in cold cells for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee's family also were used.
Nowak said Saturday that Obama's decision not to prosecute CIA operatives who used questionable interrogation practices violates the same U.N. convention. But at that point he did not specifically address the issue of how the convention would apply to those who drafted the interrogation policy and gave the CIA the legal go-ahead.