Mark J. McKeon - Why We Must Prosecute

Mark J. McKeon says in Why We Must Prosecute, a recent Washington Post op-ed piece, that "we cannot expect to regain our position of leadership in the world unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for [the torture of terrorist prisoners by the CIA]. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves."

Mr. McKeon was a prosecutor at the International Criminal Tribunal for the former Yugoslavia from 2001 to 2004 and a senior prosecutor from 2004 to 2006. He is, in other words, a professional when it comes to the workings of international law ... a subject that admittedly mystifies this blogger. Although I know that torture is outlawed under the Geneva Conventions, I can't readily explain what gives those conventions the force of law in the U.S.A.

Apparently the third of the four Geneva Conventions applies to the treatment of prisoners of war, and the fourth applies to the treatment of civilian noncombatants. The conventions have been ratified by 194 countries, including the U.S.A. But how does a ratified treaty percolate down into the legal systems of a signatory nation such as ours?

In today's Post, a letter to the editor written by Linda R. Monk of Alexandria, VA, claims, "The Geneva Conventions prohibiting torture are, under the [U.S.] Constitution, "the supreme law of the land" and require signatories to prosecute those who commit torture." Frankly, I didn't get that when I first read it, so I googled "U.S. Constitution" and "supreme law of the land." That led me to the Wikipedia article on the Constitution's so-called Supremacy Clause.

That clause, which is article VI, paragraph 2, of the Constitution of the United States, "establishes the Constitution, Federal Statutes, and U.S. treaties as 'the supreme law of the land'. The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict."

In other words, under the Supremacy Clause the treaties the U.S. government enters into are folded in with federal statutes and the constitution itself as "supreme law of the land."

Other Google inquiries lead me to conclude that treaties entered into by the U.S., as long as they do not override the letter or spirit of the constitution, are binding upon all courts, federal or state. So Ms. Monk is correct: treaties such as the Geneva Conventions have the full force of law here. When we undertook to abide by their proscriptions against torture, we undertook to treat any violations of those proscriptions as criminal acts.