Ending the U.S. Program of Torture and Impunity: President Obama's First Steps and the Path Forward

Abstract

When President Barack Obama took office, he announced that the United States will no longer engage in practices of torture. Has the Obama Administration fully changed the illegal practices of the prior Administration? Are treaty-based and customary international legal prohibitions of ill-treatment and rendition to other countries for mistreatment fully guaranteed by the United States or is there more for the Obama Administration to accomplish in order to assure full compliance with the law and that what had been an admitted Bush program of serial and cascading criminality will never occur again? Is President Obama bound under the United States Constitution to faithfully execute the laws, including treaty-based and customary international legal obligations regarding humane treatment and the duty of the United States to either initiate prosecution of or to extradite all persons who are reasonably accused of international crimes? Are U.S. international legal obligations to provide fair compensation to victims of unlawful treatment being met? If not, what must be done on the path forward? These and related questions are explored below as well as recent erroneous dicta of Judge Janice Brown in Al-Bihani that is completely out of line with venerable Supreme Court law concerning potential clashes between a federal statute (like the MCA) and international law.

(Draft; final version forthcoming.)

Keywords: Al-Bihani, AUMF, CAT, Charming Betsy, civil sanctions, Cook, Executive order, Geneva Convention, genocide legislation, human right, Human Rights Section, ICCPR impunity, Janice Brown, last in time, laws of war, lex specialis, MCA, Obama, prosecute, reservation, torture, torture statute, war crime