a lack of political will

Suppose it turns out that, legally speaking, acts sanctioned by the Bush administration at Guantanamo constitute torture. Actually, you don't really have to suppose:

In her interview, Crawford acknowledges that it was "the combination of the interrogation techniques, their duration and the impact on Qahtani's health that led to her conclusion. 'The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. … This was not any one particular act; this was just a combination of things that had a medical impact on him. … It was that medical impact that pushed me over the edge' to call it torture." What Crawford has done here is astounding. She has repudiated the formalistic (and perennially shifting) definitions of torture as whatever-it-is-we-don't-do. She has admitted that there is a medical and legal definition for torture and also that we have crossed the line into it.

What then?

The answer to that question takes you to a very different place when the act is torture, as Crawford says it is. Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

All LDers should be watching this situation closely, since it puts a sharp edge on the debate over the current resolution. It's entirely conceivable that a former president and high-ranking officials, never mind the soldiers, doctors, and citizen contractors who participated, could be prosecuted under international law. They won't, of course, since the U.S. will never allow it. And Barack Obama isn't going to press the case.

Just last weekend, Obama signaled in a television interview that he was not inclined to launch sweeping new criminal investigations of detainee treatment and interrogations that took place under the Bush administration. "My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing," Obama told ABC's George Stephanopoulos. "That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward."

What then?

Update: Eric Posner (U. Chicago) lists five reasons Eric Holder, the incoming Attorney General, is unlikely to prosecute torture charges.