There is an interesting exchange that has surfaced between a Stanford student and former Secretary of State Condoleezza Rice who is a Senior Fellow at the Hoover Institute at Stanford. The student confronted Rice about whether waterboarding is torture. She responded with a Nixonesque argument that, if the president ordered it, it cannot be a war crime. It sounds a lot like Nixon’s 1977 statement: “When the president does it, that means it is not illegal.” I discussed the Rice comment on this segment of Hardball.
Here is the exchange:
Q: Is waterboarding torture?
RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. So that’s — And by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department’s clearance. That’s what I did.
Q: Okay. Is waterboarding torture in your opinion?
RICE: I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.
The exchange is fascinating from a number of perspectives. First, it shows Rice desperately trying to fall into Obama’s ever-increasing group of exempted people “just following orders.” Her role, however, was significant in establishing the torture program. She had an independent responsibility to refuse to participate in a war crime.
Second, most war crimes involve officials who order them under the claim that they are perfectly legal. The Germans, Japanese, Serbians, and now the Bush Administration have made such claims.
Rice can certainly try to convince the world that waterboarding is not torture — an admittedly unlikely prospect. However, she can hardly portray herself as a messenger girl for the president with no independent judgment or responsibilities. The Senate Intelligence and Armed Forces Committees have released reports that show a much greater role by Rice than she has ever admitted.
Article II, Section 3 of the Convention Against Torture expressly states “An order from a superior officer or a public authority may not be invoked as a justification of torture.”
The fact is that Rice could do much better in studying the use of this defense by a professional, here.