Is George W. Bush Above The Law?
Do laws apply to the United States and its president as they do to other nations and men? On the weekend, Swiss officials were very nearly forced to answer that explosive question. Depending on George W. Bush's travel schedule, Canadian officials could be put on the spot next.
In his memoirs, published late last year, and in subsequent interviews, Bush explicitly said he ordered officials to subject terrorism suspects to waterboarding and other torture techniques. The fact that he had done so wasn't much of a surprise. There was already heaps of evidence implicating the Bush administration, up to and including the president. What was shocking was that Bush admitted it. He even seemed to boast about it. "Damn right," he said when Matt Lauer asked whether he had ordered waterboarding.
Barack Obama stuck his fingers in his ears, as he has from the first days of his administration. The pawns and peons immortalized in the Abu Ghraib photographs may have gone to prison, but far more senior officials who committed far worse acts, and those who ordered them to, have never been investigated and prosecuted by the U.S. government, and they likely never will be.
That has big implications for other governments, including Canada's.
The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) has been signed by almost every nation on Earth. Canada is a signatory. So is the United States, thanks to Ronald Reagan.
The UNCAT requires states to make torture a crime under domestic legislation. It also requires states to conduct "a prompt and impartial investigation wherever there is reasonable grounds to believe that an act of torture has been committed."
So two conditions trigger an obligation to investigate: There have to be reasonable grounds and the suspected acts must constitute torture.
On reasonable grounds, there is no doubt. The evidence amounted to far more than that even before Bush repeatedly and emphatically admitted what he'd done.
But was it torture? Bush and Company deny it, but legal scholars scoff. Domestic U.S. courts have convicted defendants for the very acts they authorized. So have U.S. military tribunals. And international tribunals. The U.S. government's own statements on human rights routinely describe waterboarding and the other techniques as "torture" when they are committed by foreign governments.
It's torture. Case closed.
The conclusion is obvious: The Obama administration is obliged by the UNCAT to investigate Bush and his officials. It won't. So the administration is in violation of the law, and that puts other governments in a very awkward spot.
Not only does the UNCAT require states to investigate and prosecute their own citizens suspected of committing torture. It obliges all signatory states to act against anyone who may have committed torture anywhere. "Take him into custody," the CAT directs, but "only for such time as is necessary to enable any criminal or extradition proceedings to be instituted." If the suspect's government will not seek his extradition for prosecution, the detaining government is required to investigate, prosecute, and punish.
No exceptions. It's the law.
Knowing that George W. Bush was scheduled to speak in Geneva on Saturday, a coalition of human rights groups reminded Swiss officials of their legal obligations. Bush cancelled his speech. The Swiss surely heaved a deep sigh of relief.
Because it's not just the law that is clear. It's the politics.
The U.S. government will not permit U.S. officials at any level to be prosecuted by foreign governments and it's quite prepared to play the Ugly American to stop that from happening. Consider the case of Khaled el-Masri, a German citizen of Lebanese origin.
It is now well established that, when el-Masri was on vacation in Macedonia in 2003, he was kidnapped by CIA agents, flown to a base in Afghanistan and subjected to brutal interrogations featuring, according to el-Masri, beatings, druggings and sodomy. Eventually, the Americans realized el-Masri has the same name as a suspected terrorist, but is not that person. After five months captivity, el-Masri was dumped in rural Albania.
Germany has refused to seek the extradition of those responsible, and, thanks to WikiLeaks, we know why: The U.S. government privately warned German officials that any attempt to prosecute would damage "our bilateral relationship." Translated from the polite language of diplomacy, that means: Do it and you'll suffer.
George W. Bush hasn't visited Canada since he admitted his crimes. But he will. Then Canadians will have to decide which we value more: Good relations with the U.S. government or the rule of law that is the foundation of western civilization.