At yesterday's press conference:
Q Thank you, Mr. President. Last night at the Republican debate, some of the hopefuls -- they hope to get your job -- they defended the practice of waterboarding, which is a practice that you banned in 2009. Herman Cain said, “I don’t see that as torture.” Michelle Bachmann said that it’s “very effective.” So I’m wondering if you think that they’re uninformed, out of touch, or irresponsible?
PRESIDENT OBAMA: That’s a multiple-choice question, isn’t it? (Laughter.) Let me just say this: They’re wrong. Waterboarding is torture. It’s contrary to America’s traditions. It’s contrary to our ideals. That’s not who we are. That’s not how we operate. We don’t need it in order to prosecute the war on terrorism. And we did the right thing by ending that practice.
If we want to lead around the world, part of our leadership is setting a good example. And anybody who has actually read about and understands the practice of waterboarding would say that that is torture. And that's not something we do -- period.
I might point out that torture is illegal in the United States. If waterboarding is torture, doesn't that require the President, who is charged with upholding our laws, to arrest and prosecute the torturers?
I'm skeptical that the illegality of torture actually does require him to arrest and prosecute. My impression is that the legal authorities retain discretion on whether to prosecute any crime, especially if they think it's unlikely that they would get a conviction. I suspect that, with various problems of jurisdiction, legal immunity, etc., it would in fact be difficult to convict. For that matter, I'm not sure we want to go down the road of strict legalism in this country (how about we start by revoking the Louisiana Purchase, not to mention the Declaration of Independence itself).
Yes, the authorities have discretion, as long as they don't use it in discriminatory ways.
The terms of the UN Convention on Torture, though, to which we are signatories, absolutely require that all torturers either be prosecuted by their own country or, if that is not possible, handed over to the International Criminal Court.
As to whether prosecution would be a good idea, I also have my doubts. But I am certain that if we prosecute nobody this time, we will torture again.
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