Duty-Bound

Attorney General Eric Holder should appoint a special prosecutor to fully investigate all aspects of the torture issue and follow the evidence wherever it leads. Recent reports indicate that Holder will soon announce a very narrow probe focusing on limited instances of torture rather than the full investigation required by law. If the Department of Justice is going to restore its credibility and America's reputation as a nation of laws, it must investigate any officials, from top to bottom, who played any role in authorizing, planning, implementing or carrying out torture.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United States and signed by President Ronald Reagan, was written in mandatory language to ensure that neither politics nor prosecutorial discretion comes into play when dealing with state sponsored torture.

In the preamble, the convention declares that it was enacted to "make more effective the struggle against torture." Article 1 defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Because torture under the convention covers instigation, consent or acquiescence of government officials, the selective prosecution of a few government employees who followed orders, while granting immunity to government officials who gave those orders, would undermine the bedrock principle of equality under the law.

Article 2(2) of the convention clearly states that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Consequently, neither the shock of Sept. 11 nor the desire to "fight terrorism" justifies torture.

Article 2(3) is equally explicit that "An order from a superior officer or a public authority may not be invoked as a justification of torture." The media is reporting that Holder does not intend to investigate and prosecute Bush officials who created the torture policy or those who followed the Office of Legal Counsel memoranda written by John Yoo and others because they were merely complying with legal opinions issued by the Justice Department.

But such justification is precisely what the convention forbids. Indeed, the Justice Department's involvement in authorizing and justifying torture is one reason why it is critical that a special prosecutor be appointed who is entirely independent of that office and has free reign to follow the facts and law wherever they may lead. If the Office of Legal Counsel memoranda could be used to change the definition of torture, contrary to the convention, and justify torture, then the convention would be meaningless because any country that wanted to use torture would merely have their legal officials dutifully provide memoranda redefining and authorizing it.

Moreover, the "I was just following orders" defense, made famous in the Nuremberg trials after World War II, has been rejected for decades. Nuremberg Principle IV states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." This "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty.

Article 4(1) states: "Each State Party shall ensure that all acts of torture are offences under its criminal law" as well as any "attempt to commit torture" or any "complicity or participation in torture." The United States has complied with this by enacting a criminal statute prohibiting torture under 18 U.S.C. 2340. This is clearly an enabling statute that Holder cannot ignore. Moreover, in order to comply with Article 4(2) to prohibit "complicity" to torture, the Patriot Act added this language to Section 2340 under subsection (c): "Conspiracy. - A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy." Clearly, those who conspired to torture, such as those who used their official position to justify and order it, cannot be excused from the dictates of the convention's Article 4 or Section 2340.

Article 5 requires the establishment of jurisdiction over persons covered under Article 4, including citizens of that country, and in cases where people are not extradited to face prosecution for torture in another country under Article 8. Clearly, this gives the United States jurisdiction to prosecute American citizens who are complicit in torture and places the duty on Holder to do so unless he intends to rely on Article 8 to extradite Americans who may be indicted for torture by a foreign state party.

Article 6 requires, "after an examination of information available," that a person who committed torture be taken "into custody" and then that "a preliminary inquiry into the facts" be immediately undertaken and shall "submit the case to its competent authorities for the purpose of prosecution." There have been vast amounts of information released, leaked and uncovered, which document who ordered, who committed and who was complicit in torture. No doubt an independent investigation would find more evidence of who aided and abetted these crimes.

Article 7 requires a state party, unless it extradites a torturer to another country for prosecution, "to submit the case to its competent authorities for the purpose of prosecution." This obligation is mandatory not discretionary. In order to follow the law, Holder must investigate and prosecute all those involved with torture and not selectively prosecute certain low level officials involved in only some acts of torture. In the case of American officials who designed, authorized and ordered torture, despite the widespread torture of hundreds of individuals, including at least 98 deaths, not a single case has been prosecuted.

Article 12 provides the strongest language for the appointment of a special prosecutor: "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" and Article 13 requires a state party to investigate all complaints of torture made by persons who have been tortured. Clearly, in the case of torture by American citizens, there is indisputable evidence in various official reports and elsewhere to require an impartial and comprehensive investigation by a special prosecutor.

Holder has repeatedly stated that his Department of Justice "will follow the law." That law, as specified by the convention, not only prohibits the use of torture, but requires the investigation and prosecution of those who committed or conspired to commit torture. Applying the rule of law evenhandedly is a key component of the American system, and that is why the scales of justice should not be weighted in favor of those who hold positions of power. Our nation suffered a grievous blow to her reputation and moral standing when the previous administration intentionally violated the law by advocating and instituting wholesale torture of detainees.

American citizens who ordered and committed acts of torture should be prosecuted in the United States, where they will be given the full panoply of legal protections under our Constitution. At trial, they should be allowed to present any defense under the law, and they should be able to argue whatever mitigating factors are applicable during sentencing. They should not, however, be granted immunity from prosecution in advance of a complete criminal investigation.

Failure to hold those accountable for torture will have numerous repercussions. Anything less than a full torture investigation by a special prosecutor could result in the indictment of American citizens by other parties to the Convention Against Torture, which will then require Holder to extradite them and provide evidence against them.

The failure to prosecute those suspected of violating the law will embolden other party states and non-party states to ignore international treaties and laws protecting Americans, resulting in future atrocities against our own citizens. Failure to prosecute will also create a de facto exception for future administrations that may decide that torture, or any other atrocity, should be U.S. policy.

Appointing a special prosecutor free to investigate anyone suspected of violating the law is not merely an option or a choice. It is the sworn duty of the attorney general who took an oath to preserve and protect the Constitution and a president who promised to ensure that the laws are faithfully executed.

Stephen Rohde, a constitutional lawyer with Rohde & Victoroff in Century City, is author of "American Words of Freedom" and "Freedom of Assembly."