Glenn's blog is up for nomination in the Best Liberal Blog category in the 2007 Weblog Awards. Please go vote if you haven't already.

http://2007.weblogawards.org/polls/best-liberal-blog-1.php

Actually, your question strikes at the heart of what wrong with the whole debate. As was just pointed out waterboarding is was and remains torture and is hence illegal. The current AG nominee refuses to acknowlege this and is hence unfit for office. The WaPo is defending him because to acknowlege that waterboarding is indeed torture would then require that he prosecute those who engaged in it even though they were operating under a twisted, convoluted memo which led them to believe that they wouldn't be prosecuted. Since the WaPo apparently believes that everything is legal as long as you can get a public official to tell you its legal, to prosecute criminals who operate under the orders of other criminals is grossly unjust.

http://balkin.blogspot.com/2007/11/washington-post-jumps-shark.html

Now Why Didn't I Think of That? Washington Post Proposes That Senate Ban Torture!
Marty Lederman

Has it really come to this? Can one of the nation's leading newspapers actually decide to publish the words that it's about time "the Senate" finally "ban torture" -- something it has thus far "declined to do"?

-- On July 6, 1955, the Senate unanimously gave its advice and consent to the ratification of the Geneva Conventions, each of which (in Article 3, which applies to al Qaeda detainees) categorically prohibits "torture" (not to mention "cruel treatment").

-- On October 27, 1990, the Senate unanimously gave its advice and consent to the ratification of the Convention Against Torture, article 2(1) of which obligated the United States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."

-- In compliance with article 2(1) of the CAT, in 1994 the Senate and House approved, and on April 30, 1994 President Clinton signed, the Torture Act, which categorically prohibits torture outside the United States (18 U.S.C. 2340A(a)).

-- And it's not as if torture was legal even before the Senate, House and President acted on these instruments. As the Supreme Court recently explained, under international law (including the laws of war binding on the executive branch), the flat ban on torture is among the handful of international law norms with the greatest "definite content and acceptance among civilized nations": Even for purposes of civil liability, "the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind".

All of which is to say -- and it's fairly amazing that this still needs to be said in this day and age -- if there is any single thing imaginable that the Senate, the Congress, and the world community have not "declined to do," it is to ban torture categorically. (Even Judge Mukasey understands this: He writes it dozens of times in his responses to the Senate.)

That's not to say it would not also be a good thing to enact the Biden bill, which would specifically require all United States personnel, including the CIA, to use only interrogation techniques authorized by the Army Field Manual. That would be yet another step that would help prevent the Bush Administration from violating the current bans on torture by doing things such as implausibly characterizing its torture as "not torture."

HOWEVER . . .

1. Whether or not the Biden bill ever becomes law, it remains the case that the torture is, in fact, unlawful -- and that the Senate and the Congress have voted repeatedly for actual laws and treaties (the supreme Law of the Land) that say so.

and,

2. Just in case the Washington Post has forgotten about yet another legal text, it's worth reminding Fred Hiatt that although the Senate's vote to confirm Judge Mukasey would effectively make him the Attorney General, the Senate does not have the power to "pass" the Biden bill. That would require President Bush's signature, as well (or supermajority votes of both chambers) -- and President Bush won't sign such a bill, precisely because he wants to be able to keep violating the longstanding legal prohibitions on torture and cruel treatment.

* * * *

What the Post might have written that might have made some sense: "Because Judge Mukasey and the Bush Administration do not seem to understand that the techniques they refuse to disclaim are torture and cruel treatment that are already unlawful several times over, the Senate should tell President Bush that it will confirm Judge Mukasey if and only if -- and after -- the President signs the Biden bill."

That wouldn't be a panacea -- because President Bush could always rewrite the Field Manual. (Don't put it past him.)

- - Marty Lederman

You would submit claims or communications to the Office of the Prosecutor at the ICC (Luis Moreno-Ocampo).

http://www.icc-cpi.int/organs/otp/otp_com.html

This would be a request for the Prosecutor to begin an investigation, since investigations are started by State Parties, The U.N. Security Council, or the Prosecutor. Under the articles for the court (http://www.icc-cpi.int/library/about/officialjournal/Rules_of_procedure_and_Evidence_English.pdf)

you need to be a "reasonable party". If you're a lawyer you probably know what that means, but if not, you probably want someone who is to assist. I found the documentation to be difficult (I'm not a lawyer).

My own feeling is that there's more than enough to show the U.S. is in violation of the articles demanding that there be a full investigation, but maybe to close up any gap on charges of torture, an investigation by someone like Mr. Moreno-Ocampo or someone else who can compel testimony is needed. I do think the Bush people pretty much admitted to waterboarding over the last two weeks, though.

On another front:

Some of the evidence is in Pakistan, and the situation there is deteriorating rapidly. They apparently dragged the whole Human Rights Commission bodily into the streets and arrested or house arrested them. The reporting in Dawn has become uncharacteristically bland. My wife says that's a subcontinent form of protest to indicate that censorship is in effect.

Pakistan is an interesting ball game. The Supremes there alleged that their government, among other things, illegally extaordinarily rendered to the Americans -- illegally because it could be presumed that prisoners rendered to the Americans would be tortured. Ordinarily such a court decision would be a big help in bringing American torturers to justice, but those that made the decision are now jailed or in house arrest. But really they are in a battle over release of ISI "terrorism" suspects. The ISI has reportedly been making $1 Million a pop for giving people to the CIA, but knowing them, the money probably went to buy weapons for the other side (Taliban, Al Qaeda, suicide raids into Afghanistan).

It's one thing when our Bushian allies are funding terror against us, it's ridiculous if we're funding it ourselves, and getting whacked by some other country's courts for being a state sponsor of torture.