Some Facts For Obama To Consider
(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.Article 7:
2. Such State shall immediately make a preliminary inquiry into the facts."1. 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.
Another bit of the Convention Against Torture is relevant to the question whether we should construct a new legal system to deal with Guantanamo detainees. Article 15:Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.Whatever Obama decides to do about the fact that detainees were tortured, admitting claims they made as a result of torture as evidence is not an option.