Power's world: Obama's inheritance of torture

The courtrooms of America sometimes take us by surprise. Last week, Charles ”Chuckie” Taylor, the son of the former Liberian president and notorious warlord, Charles Taylor, was sentenced in a Miami court to 97 years in prison for torture. It was the first time than an American court had applied a law passed in 1994 allowing the prosecution of citizens who commit torture overseas. (Taylor was born in the US, but then moved to Liberia to join his father.)

Is there now one law in America for those who commit torture overseas and another for those who commit it at home with the authority of government? Perhaps for not much longer. In a television interview last weekend, President-elect Barack Obama said that the attorney general would investigate whether some senior members of the Bush administration should be prosecuted for their part in torture, although he said that his belief was that ”what we have to focus on is getting things right in the future.”

Also last week he said that he had given his new appointees to top intelligence positions a clear charge to restore the US's stance as a protector of human rights. "Under my administration the United States does not torture.” Obama should also have reminded his audience that it was during the presidency of Ronald Reagan that the US helped push for the UN to agree to a legally binding treaty against torture, and then propelled Congress rapidly to ratify it. It is this treaty that provides the legal underpinning for the prosecution of Taylor.

Still, even the Bush administration has done its bit for some aspects of international law. For years it waged war against the creation of the International Criminal Court, meant to try those charged with crimes against humanity. But in recent years the US appeared to change its position. As a number of African warlords have been seized by the ICC, the US has supported the process. Most recently it has encouraged the ICC for the first time to prosecute a head of state, the President of Sudan, Omar al-Bashir. Bush seems to have put to one side his fears that the ICC might put the US in its sights. The statutes of the ICC make clear that it will only prosecute when domestic courts fail to act and, even if the US now signs up, it cannot act retrospectively.

Surprisingly, too, the Bush administration has quietly supported the UN Security Council in working closely to act on grave issues. Even though the US abstained last week on a Security Council resolution ordering the Israelis and Hamas to agree to a cease fire, Secretary of State Condoleezza Rice made it clear that the US was not against the resolution, only its early timing. The US abstention was considered a shot across Israel's bows.

But there was total unanimity in the Security Council following the Mumbai killings when it declared that the Pakistani Jamaat-ud-Dawa was a front for the militant movement Lashkar-e-Taiba and that sanctions against it should be applied. This added to the pressure on the Pakistani government to arrest suspected militants. Likewise, last Tuesday, the Security Council voted, again unanimously, authorising member states to conduct land and air attacks on pirate bases in Somalia.

Often overlooked is the fact that during the time of the Bush administration a fourth of all UN Security Council resolutions in its entire history were voted on, and usually passed without dissent.

A test case for the US observing international law will be the Obama's administration's willingness to close down Guantanamo. The world never believed President George W Bush when he said last year he wanted to close it.  But now, with Obama pushing, the other Western countries will have to step forward and agree to take many of the prisoners the US wants to release.

But Obama will still have the so-called ”hard core” on his hands, and public opinion does not appear to want them brought to the mainland and prosecuted in domestic courts. The fear is that too many of them will be acquitted for lack of evidence or because they were tortured, and then will be free to arrange another atrocity.

Maybe part of the answer to this is to bring a domestic court to Guantanamo to replace the military court. If convicted they can be moved to incarceration in the US, but with their rights of appeal intact. If freed they can be refused entry to the US and be deported to the country of their choice. If no one will take them they can be given a house and a plot of land in Guantanamo and wait until some country does. They can be compelled to wear tracking devices so than any move to escape can be thwarted.

This would be an important contribution to upholding what Obama calls America's ”highest ideals."