Will the torturers get away with it?

Maybe they will. But why does the entire Red team *want* them to get away with it?

Volokh Conspirator and U of C law professor Eric Posner has put up a series of posts predicting that the Bush Administration torture crew will escape prosecution, both domestically and internationally. The latest in the series replies to my earlier post arguing that the Convention Against Torture imposes a legal obligation on the U.S. Attorney General not to waive torture prosecutions on grounds of politics or policy (as opposed to grounds of possible innocence or lack of evidence).

Posner replies that, because a Senate reservation made the CAT non-self-executing, Holder is under no legal obligation to prosecute. Posner is a law prof and I’m not, so the betting ought to be on his being right on this until some actual expert weighs in on my side. But I think part of our disagreement is that Posner takes a purely legal-realist view of what “law” is, under which nothing is law that won’t in fact bring down unpleasant legal consequences on the head of whoever violates it. He also takes a purely cynical view of the functions of prosecution. “Putting aside private rights of action, domestic laws are enforced only when there is political motivation to enforce them.” That seems to me a fairly profound insult to the prosecutors and cops who think they do their jobs to uphold the rule of law and not out of “political motivation.”

I think there’s a perfectly good sense of the word “law” in which the United States has a legal obligation to comply with treaties, even if there is no international enforcement mechanism behind them. Isn’t the idea that treaties are mere scraps of paper somewhat … European and quaint?

Stepping back from the legal argument, it seems clear that Posner, in predicting that the torturers will go unpunished and providing various legal justifications for not punishing them is indicating his wishes as well as his analysis. Posner, his fellow Conspirators, their commenters, and almost all of the Red team want the torturers to get away with it. That’s as good a reason for sticking with the Blue team as I can easily think of.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com