My latest column for CNN explains why attempts to prosecute President George W. Bush for ‘war crimes’ in foreign countries (such as Switzerland) are really attacks on the US legal system:
Charge George W. Bush with war crimes?
Some Bush critics have for years demanded a prosecution of the former president. They had hoped that the incoming Obama administration would put Bush on trial. No luck.
Now they have changed their focus, filing actions in foreign courts. Last week, these Bush opponents filed an action in Switzerland in advance of a Bush appearance at a charity fundraiser in Geneva.
Shortly after the filing, the Bush appearance was canceled. Bush is in no danger of going to a Swiss jail, obviously. But it’s important that all Americans understand: This use of law as a weapon of politics is an assault upon the basic norms of American constitutional democracy.
American presidents are subject to law, of course: American law.
In the case of torture — the offense of which Bush’s critics accuse the president — the relevant law is the War Crimes Act of 1996, which provides penalties up to the death penalty for abuse of military detainees.
This law was adopted in conformity with U.S. obligations under the 1986 Convention Against Torture, which called upon all signatory states to “ensure that all acts of torture are offences under its criminal law.” (It’s often said that the convention “bans” torture, but that is not correct: It creates an obligation on member states to ban torture by their own nationals.)
In 2001, Bush asked government lawyers: What exactly constitutes “torture” under U.S. law? Is isolation torture? Sleep deprivation? What about putting an insect in the cell of a prisoner frightened of insects? How about waterboarding?
Bush asked those questions precisely because he wanted to comply with the law. He wanted to go up to the limit of the law, but not beyond. That’s why he wished to know where the limits were found.
The legal answers Bush got — and the methods his administration used — have divided Americans for almost a decade. Republicans lost the 2008 election, and the Obama administration changed policy. Which is how we decide policy questions in the United States: by elections and alterations of government.
When it entered office, the Obama administration considered prosecuting the CIA officers who had done the interrogations. It seems to have considered legal action against higher-ranking officials, too. The Obama administration rejected both options.
So when people file actions in Switzerland against Bush, it’s not merely the former president they are targeting. They are targeting the entire American legal system. They are demanding that Switzerland override an American decision about which Americans should be prosecuted for violating an American law.
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