I received an inquiry from a reader and broadcaster about my recent post on George W. Bush and the international rule of law. I was asked directly: Did I deny that the UN convention on torture applied to an American president? Some thoughts:
1) The relevant part of the UN Convention Against Torture reads as follows:
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
The convention is not self-executing. It calls on signatory states to adopt implementing legislation. Which the United States did in 1996, when Congress enacted the War Crimes Act, which carries the death penalty.
2) After 9/11, the Bush administration sought Department of Justice guidance as to how to comply with the act. Not how to break it, how to comply. You can disagree with the guidance they received, but as far as the executive officers of government were concerned, they were pushing up to the limits of US law, but not exceeding it.
3) Now, some people in other countries, who disagree with the US interpretation of US law, propose to attack former US officeholders in foreign countries under foreign law for decisions undertaken in the United States in conformity with US law.
4) Think for a moment how this would work if generalized. If a Dutch doctor euthanizes a Dutch terminally ill person in Holland, can she be prosecuted for murder if she vacations in the United States? If a Portuguese marijuana distributor who does all his business in Portugal delivers a lecture at a US conference on why he favors the Portuguese approach, can he be prosecuted during his sojourn in this country for drug trafficking back at home?
5) The proposed action is a direct attack on 2 principles of the rule of law. George W. Bush obeyed all the laws of the country in which he lived. Now it’s suggested that some other country may punish him for violating its laws – laws in which he had no vote or say. Note too that in such a hypothetical prosecution, this American citizen who committed all his acts under the sovereignty and jurisdiction of the United States, could be prosecuted without the protections of the US Constitution.
6) Of course the prosecution would never happen. The litigants here are abusing the court system of their countries to harass a former US head of government under color of law. That is an unfriendly act against the United States as a whole, and partisan politics should not get in the way of recognizing what is being done here to the international state system.