Charge George W. Bush With War Crimes?

February 14th, 2011 at 4:59 pm David Frum | 39 Comments |

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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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39 Comments so far ↓

  • tommybones

    Bush has openly admitted to war crimes under U.S. law, as well as international law. Hand-picking “lawyers” to tell you what you want to hear is not a legitimate defense.

    “Your Honor, I didn’t know driving under the influence of alcohol was illegal! My drinking buddy, who also happens to be a lawyer, told me so!”

    Yeah, that would work.

  • tommybones


    I have also noticed their seems to be some confusion as to the legality of the interrogation technique known as “waterboarding.”

    The Honorable Evan Wallach, a judge on the U.S. Court of International Trade and a former JAG officer has an outstanding commentary on this practice:

    First, Judge Wallach clarifies the nature of what is called waterboarding:
    That term is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as “simulated drowning.” That’s incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is,
    the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding’s effects, it can cause severe psychological trauma, such as panic attacks, for years.

    This seems to be a textbook definition of torture.

    Second, Wallach makes it clear that the United States has traditionally punshied those who have engaged in waterboarding:
    The U.S. government — whether acting alone before domestic courts, commissions and courts-martial or as part of the world community — has not only condemned the use of water torture but has severely punished those who applied it.
    After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forcesofficers who flew in the Doolittle Raid and was captured by the Japanese, testified: “I was given several types of torture. . . . I was given what they call the water cure.” He was asked what he felt when the Japanese soldiers poured the water. “Well, I felt more or less like I was drowning,” he replied, “just gasping between life and death.”

    Nielsen’s experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan’s military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.

    After noting several other prosecutions, Judge Wallach continues:
    More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that “the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee’s mouth and nose, and water producing a drowning sensation.”
    In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners’ civil rights by forcing confessions. The complaint alleged that the officers conspired to “subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.”

    The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

    Wallach concludes:
    We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That’s a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is — as well as what it ought to be.

  • stopdroproll

    Mr. Frum,

    While I appreciate your passion regarding the integrity of our inspiration legal system, I find this post misleading. You don’t give any evidence that shows how exactly appealing to the international legal system is an attack on the American System. Making the conclusory statement that They are demanding that Switzerland override an American decision about which Americans should be prosecuted for violating an American law. oversimplifies the issue. If Bush indeed tortured detainees, he is not only responsible to Americans but the World, as well. How could an American president be accountable to the world, you ask? Torturing detainees is a crime against humanity, and as such those commanding officers who designed the alleged torture program are accountable under not only a natural law theory, but treaties to which the U.S. is a party.

    For the most part, what you’re saying is an appeal to international authority is an attack on American Sovereignty. While this is factually true, it does not make the American legal system weaker. There are other laws the President of the U.S can be held accountable to, and the prohibition against torturing detainees is one of them…

  • tommybones

    Frum fails on so many levels . Any signatory to the Convention Against Torture is OBLIGATED to investigate and prosecute if necessary, any possible violations of the treaty.

  • balconesfault

    Bush asked those questions precisely because he wanted to comply with the law.


    I think everyone who’s not a “true believer” is convinced that Bush asked those questions to precisely the lawyers he asked because he wanted the law to comply with his wishes.

    Note that the International Community is not necessarily that hot on the Bush Six being off the hook for their torturing of the concept of torture, either …


    Didn’t we have this exact discussion last week?

  • TerryF98

    Me thinks this is a little to close to home for Frum. Maybe if Bush Cheney and co end up in the dock Frum thinks he might be next. After all he was a propagandist for a torture regime.

    Maybe he is feeling the noose around his neck.

    • pnumi2

      And if Bush uses the ‘Axis of Evil’ defense, all eyes will be on Frum. What then?

  • rbottoms

    I am happy that the people responsible for 100,000 Iraqi dead, 5,000+ KIA troops and the maiming of 50,000 soldiers know they better not set foot outside this country, at least not without looking over their shoulders almost certainly for the rest of their lives.

  • medinnus

    It must be hard to be an apologist trying to excuse the war crime of torture admitted by Bush and Cheney.

    Pretty much everything else salient – the lack of the rule of law which makes a larger mockery of our system than any foreign country ever could , the damage that the fact of torture does to a country and their soldiers, the legal treaty obligations that the United States has to investigate and prosecute war crimes, the fact that we have ourselves tried and convicted war criminals just as other countries are perhaps about to do with Bush and Cheney, by their obligations to the same treaties in which we are currently in violation, et cetera ad nauseaum.

    My suspicion – and this is sheer speculation on my part – is that Obama is a big enough coward to not do the hard work and take the political hit himself; rather, he’ll let other countries and the World Court investigate them and convict the alleged war crimes and the alleged criminals who ordered them.

    Even if that makes him complicit in the crimes as an accessory after the fact.

  • midcon


    Exactly. Deja Vu.

    Moving on.

  • Libdem

    I wish commentators like Mr. Frum would abide by the rule “If you don’t have anything intelligent to say then don’t say anything at all.” Of course then they would rarely get paid…

  • lessadoabouteverything

    This is ridiculous, no one anywhere is talking about extraditing Bush to Switzerland, but George Bush has no right whatsoever to enter Switzerland (unless he was doing UN business in Geneva)
    Switzerland is not exactly threatening to invade us unless we deport him there.

    For the most part for decades it was against the law for me, as an American, to even go to Cuba. I accept this. I travel under a US passport and have to face certain restrictions, likewise there are countries I can not visit because that country would deny me a visa. Such is life.
    George Bush is a private citizen. He is not a head of state. I do not give a rats ass if he can’t go to Switzerland to pick up some check.

    This is the issue, David Frum is stating that other countries must adhere to American law.
    If Iran has a law that says no one anywhere can threaten harm to Ahmeddinnerjacket, and I were to say I want to kick his scrawny rat like little ass, then I could not care less if Iran indicts me. I am not going there.
    Essentially, Bush’s being indicted in these countries is the way in which these countries are saying that they don’t want him there in as rude a way as possible.

    • pnumi2


      You better be careful. A lot of Foreign Intelligence Agencies are enrolling in the Mossad School of Murder and Kidnapping.

      “On September 30, the Sunday Mirror released Vanunu’s picture and a report ridiculing the Dimona nuclear reactor disclosure, in an attempt to belittle the Sunday Times, which was about to purchase Vanunu’s account. Vanunu was upset, and Cindy exploited his high-strung state. She proposed they leave the following day for Rome, where her sister had an apartment. Though the Sunday Times journalist Peter Hounam explicitly warned Vanunu that Cindy might by a Mossad agent, and that he must not leave British soil, Vanunu took up her offer.

      After they flew to Rome, and entered the apartment, two Mossad agents pounced on Vanunu, tied his hands, and injected him with a drug. He was then brought back to Israel by boat.”

      When foreign governments are after you, it’s best never to leave your house. Or get involved with babes who are clearly above your pay grade.

  • ktward

    Wait. I’m with TRS– didn’t we just go down this avenue?
    Perhaps Frum’s previous post was a trial balloon. Tweak his argument before officially posting at CNN.

    I don’t see how any amount of tweaking is going to make this one fly.

  • ProfNickD

    Water boarding? [Yawn.] If journalists voluntarily submit to it in order to report on it, it ain’t torture.

  • ottovbvs

    Essentially you’re arguing it’s jurisdiction shopping David. But then Republicans jurisdiction shop as they have done over the ACA repeal. What’s sauce for the goose etc. And the claim that waterboarding is not torture is risible. Just about every Gestapo movie I’ve ever seen involves them using it.


    “Water boarding? [Yawn.] If journalists voluntarily submit to it in order to report on it, it ain’t torture.”

    You continue to be a complete moron. [Yawn.]

  • nwahs

    The United States is a country of law, with no one above the law. Its not some banana republic where the president is immune from prosecution ( e.g. Nixon and Clinton). But when a foreign entity seeks to use weird, agenda laden interpretations of law to attack US heads of state, it should be considered an act of war against the United States.

  • Elvis Elvisberg

    Yoo intentionally omitted the leading case, Youngstown Sheet & Tube, from his discussion of executive authority. He told Bush what Bush told him he wanted to hear: that the president is not bound by the rule of law.

    Yoo’s writing was not a good faith legal opinion. Bush was bound by the rule of law. So he can’t go to countries with functioning legal apparatuses, now that he’s admitted to having given orders to torture. Too bad for him.

  • Houndentenor

    Why does it sound like David is making a case that Bush is above the law, not that he didn’t break it?

    • nwahs

      Actually Frum’s case is some enemies of the United States want to circumvent its legal system. IMO, they should be held accountable.

  • McComas.Scott

    It seems that the left is again being hypicritical. Why are you anti-conservitives always bashing what America or Republicans do, but you never go after those who are truely evil. Look at all the evil that is commited by (radical) Islam against those that do not believe how Islam is interpreted. Even those who are followers of Islam. Look at those who kill in the name of Islam without the rule of law but the rule of Sharia.
    We have gangs and thugs who kill but you allow it while protesting capital punishment.
    No one was killed under this “torture”, but many have died from “honor” killing.
    Stop complaining about those who man up for the weak against the brutal. For you condone the actions of the brutal against the weak because you are evil like them when you are silent about their actions.

    • sparse

      It seems that the left is again being hypicritical [hypocritical]. Why are you anti-conservitives [conservatives] always bashing what America or Republicans do, but you never go after those who are truely [truly] evil. Look at all the evil that is commited [committed] by (radical) Islam against those that do not believe how Islam is interpreted.[, e] Even those who are followers of Islam. Look at those who kill in the name of Islam without the rule of law but the rule of Sharia.
      We have gangs and thugs who kill [true] but you allow it [false]while protesting capital punishment [which arguably increases the murder rate].
      No one was killed under this “torture” [dubious, but unknowable], but many have died from “honor” killing [and from any number of other causes beyond our control or say-so: domestic abuse, drunk driving and cigarette smoking kill more than honor killing, easily. where's the outrage?].
      Stop complaining about those who man up [ha! fantasize about masculinity much?] for the weak [Americans are NOT weak] against the brutal [you]. For you condone the actions of the brutal [you] against the weak [again, we are not weak] because you are evil like them when you are silent about their actions [no, silly man, i am evil like you when i am silent about torture].

      and to revisit an important passage from the middle: “Look at those who kill in the name of Islam without the rule of law but the rule of Sharia.” look instead at those who kill in the name of GWOT without the rule of law but the rules of fools.

  • lessadoabouteverything

    nwahs: But when a foreign entity seeks to use weird, agenda laden interpretations of law to attack US heads of state

    I guess you didn’t get the memo, but Bush is no longer head of state. How the hell is Switzerland, or any country, telling a former head of state that they are not welcome in the country and attack on the US? You worry way, way, way too much about what some rinky dink little canton’s bs indictment means. Bush will not starve because he can’t go to Switzerland and pick up a huge check for giving a brief speech.

  • midcon

    There has been no “indictment” of Bush in Switzerland. Right now the case is simply a public complaint. No Switzerland authority has acted on the complaint and nor does there seem to be any movement towards action.

    It is not in Switzerland’s interest, nor U.S. interest for any such indictment to be filed. Nor does any other developed country have such an interest.

    The harm this would do to foreign relations between the U.S. and any other developed nation is incalculable. This is a harmless and even pointless discussion. If there were any real movement towards such an indictment, it would have to indict the entire U.S. government because regardless of whether we like what he did, our justice system has found no violation of any U.S. law.

    Good discussion, but ultimately it is irrelevant as regards to Bush. What may not be irrelevant is a discussion whether U.S. citizens are bound by other national or international laws when they are acting in an official capacity or even when they are acting as private citizens?

    There are adequate precedents which identified water boarding as torture. Bush’s error was not in using any and all means to obtain intelligence which might have saved lives, but in not maintaining plausible deniability. It was a cowboy error.

  • think4yourself

    Unlike Frum, I didn’t sit in the room with Bush, Cheney, Rummey, et al while discussing torture. I don’t think that they said “please find out what the law is so we don’t violate it”. At that time these folks were busy redefining all aspects of war to push the boundries of American power. Defining the enemy not as soldiers but as “enemy combatants” so they do not have the benefits of the Geneva Conventions. Also working to define torture to include almost anything except gross organ failure or death. They found in John Yoo an able partner to create definitions to fit their world point of view.

    I actually liked John McCain until he caved on this issue. As someone who has undergone torture he initially stood up to say it wasn’t acceptable to treat people this way, but then he folded – something he apparently didn’t do while undergoing torture himself. John McCain was a POW for 5 1/2 years. There have been people in Guantanamo for 9 years…

  • Slide

    Bush asked those questions precisely because he wanted to comply with the law.

    David, David, David. Please stop insulting your readers.

  • TAZ

    David, David, David have the procedure (water-boarding) professionally done on yourself and report back to your readers…………………..

  • Emanuelle

    “… Bush asked those questions precisely because he wanted to comply with the law.”

    In the sense that he wanted to find a way to stick to the letter of the law while violating its spirit, I couldn’t agree more.

  • llbroo49

    Frum (amongst others) is trying to use the law to justify the fact that Bush should not have to face criminal charges for alleged crimes while he was president. It would be far easier for him to just be honest and say that only losers and leaders from weak countries ever face the World Court or International Tribunals. For example, had Hilter been captured at the end of the Second World War, he would have faced world justice at Nuremberg. On the other hand, Stalin (who arguably had more blood on his hands) never even had to fear an indictment.

    We don’t always like it -but might does make right in the real world.

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  • lessadoabouteverything

    midcon: What may not be irrelevant is a discussion whether U.S. citizens are bound by other national or international laws when they are acting in an official capacity or even when they are acting as private citizens?

    Try telling that to General Noreiga, Pinochet, Milosevic…etc. or are you saying non US citizens are bound by our or international laws when they were acting in an official capacity or even when they were acting as private citizens?

    The US routinely indicts Mexican drug traffickers, even when there is no evidence that they are selling in the US under things like the RICO act. Again, one set of rules for Americans and another for everyone else?

    I disagree any indictment (if there ever would be one) in any other country would do incalculable harm to America. You have to show me the harm to America not just Bush’s or your feelings, what is the manifest harm?

    The only real objection I would have is if a nation hands down an indictment in secret and then lures an American politician there and then arrests them, but no country would dare do that.
    The worst thing I can see is that Bush won’t be travelling abroad much, but he is pretty much universally hated everywhere, that kind of came with his being an arrogant and lousy President.

  • midcon


    I have the same questions about General Noreiga, Pinochet, Milosevic…etc.

    They are bound by the laws of their nation. They are bound by international law when their nation has agreed to conform to international. They are bound by other nations law, when they are in that country and their acts within those borders violate that nation’s laws. And finally, they are held accountable for acts in their own country by an international body, when it is evident that their own nation does not have the structure necessary to exact justice.

    If Noreiga, et al did not fit any of those conditions, I would disagree with prosecuting him. The same thing should apply to Assange. The U.S. should have no business prosecuting him for violation of U.S. law because he was not in the U.S. at the time of the alleged act, nor was he under the jurisdiction of the U.S. (IAW the Constitution).

    In Noreiga’s case, he was tried for drug trafficking, racketeering, and money laundering, which I am guessing (but do not know) involved acts which were committed in the U.S. (such as bringing drugs into the U.S.).

    But in general, I would hold everyone to the same test I articulated. It has nothing to do with politics, or how I feel about Bush (in my opinion he was the worst President in history). It simply a question of the law and it’s applicability to U.S. citizens.

    A lot of people hate Bush and they allow that hatred to govern their acts. The law must be applied without passion or prejudice. Everything we are and everything we aspire to be in this nation depends on that principle. Regardless of how I feel about Bush, I will not allow passion and prejudice govern my thoughts about what is right or just.

  • lessadoabouteverything

    midcon, hey if you are consistent I have no problems with what you say.

    Milosevic did not break any Serbian laws, he was tried for crimes against humanity (and torture is a crime against humanity). Now the question is does sanctioning extreme measures to obtain information, such as waterboarding, constitute torture? It doesn’t matter what some of Bush’s lawyers opinions are, they bind no other foreign nation. If Switzerland feels waterboarding is torture and torture is a crime against humanity, they have the right to indict whoever they want.
    As to Noreiga, he didn’t transport any drugs to the US personally, but he did have arrangements with the CIA to use some of the money his drug runners made would be used to finance the contras.

    The thing that bothers me is that Frum wants Switzerland to define torture and crimes against humanity the way that Bush’s Lawyers did and that anything else is unacceptable. But Switzerland is a sovereign country, they can indict whoever the hell they please, we have the right to never extradite Bush (which we never would).

    I think waterboarding was a war crime, I understand Bush and Cheney will never face trial for it, but I am delighted that they are now too afraid to go abroad because of their ordering these actions.

    In the future if you are President, don’t provoke the world by stating that when you torture people it is not a war crime (and then go ahead and order the torture) and still expect to be able to go to those countries.

  • Conscience of a Conservative

    First issue: Does opinion of Justice Department shield public officials from domestic prosecution for acts committed in the performance of their public service? Absent collusion to to reach a false “opinion” of legality (which is a HUGE question with the acts by the Bush administration), such an opinion should shield the public servant from domestic prosecution.

    Second issue: If acts committed by a U.S. public servant constitute a crime in another country, can/should the public servant be prosecutable in the foreign jurisdiction? This is much more complicated question because some stray country could enact a crazy law with crazy extraterritoriality (image, for example, a Libyan law that made it a crime for a U.S. citizen to burn a Libyan flag in the U.S.). However, if the International community and the U.S. has agreed to an “international” law, jurisdiction, and enforcement, then that law should be enforceable.

    Third issue: Is is a good idea to subject U.S. presidents to foreign jurisdiction for prosecution under International law? Probably not unless the behavior was so out of the box that really we would prosecute the U.S. president domestically. We do want our U.S. presidents to be able to fully act as chief executives.

  • gravelgobbler

    The USA should have to pay for its unjust wars against the world and its former leaders ,lol bush and chaney and should be tried and hung in public . I guess they are now prisoners in there own country.