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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.
Re: Legal advice.
If I go to enough lawyers, maybe one of them will tell me what I want to hear. Is that lawyer the one who gave me the best advice?
@TAZ Thank you for an honest and obviously well-considered opinion. I wish more people across the political spectrum would be that forthcoming. We might actually be able to get somewhere rather than engage in endless bickering and with people defending things they’d never tolerate if a different person were being discussed.
“When someone puts party above country their patriotism is suspect.”
Yes and that is exactly why the partisan need to brand Bush a war criminal is anti-American. I would feel the same way if they tried to categorize Truman, Clinton or Obama a war criminal. Party above America is without question unpatriotic. Thats exactly what we are seeing in this thread.
By that argument, Nixon was innocent.
Party over Patriotism is bad – like calling for the failure of the President, no matter what that President tries to do to help the country.
Patriotism over the Rule of Law is worse – When a sitting President violates the International laws to which his country has committed, he is pissing on his nation.
Your argument is dishonest David,
That guidance was never tested or put to a judiciary, so it was not law that Bush was acting under, it was advice.
The interpretation was not US interpretation it was an argument made by Bush’s legal advisers. Again, that interpretation was never scrutinized by a legislative body.
False. George W. Bush ordered a bunch of lawyers to come up with an interpretation of the law that he could use to defend his actions.
Actually, it was Bush that abused his power and privilege to break the law, or at the very least circumvent it. Yes, this may indeed be an unfriendly act against the United States, but then again, torturing foreign nationals was hardly a sign of good will either.
Shingo, I concur but there is an even simpler rebutal. Mr Frum Argues by analogy: Should we arrest a dutch person for doing something that is legal in his country but illegal in ours? Well, these people that we tortured were not violating their own countries laws. We went out, captured them in their country, and tortured them. As it turns out, many of them may not even have violated our laws either. So either Mr Bush should be arrested for enforcing laws beyond our own borders, or it is fair for other countries to enforce their laws on people in our country who violate international law. Seems pretty air tight no matter whether you agree with Frum or disagree.
“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.”
Isn’t this what we do with – Torture Victim Prevention Act (28 U.S.C. §1350). This allows people to sue for civil damages in US courts for actions we consider torture in other countries…
Dear David,
I just had an idea. Why not sit down and discuss the specific charges with experts in international law who can tell us from a legal (rather than a political) perspective whether or not any of the charges have any actual basis in law. That would be interesting. Continuing the political battles of the 2000s is not terribly useful and won’t get us anywhere.
“Party above America is without question unpatriotic.”
What you don’t seem to get is that it cuts both ways. Reflexive condemnation and reflexive defending are two sides of the same coin, and you are no better than the people you’re complaining about.
What matters is what actually happened, and what happened suggests that patriotic Americans have good reason for complaint.
David wrote;
“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.”
And as everybody know…..
That defense worked well for Nixon, right?
@nwahs,
There is nothing more “American” than holding everyone accountable to the law, regardless of who they are. If this stinks of partisanship to you, then perhaps you should first ask yourself “why am I compelled to feel defensive of this individual?” You may like him personally… he may be your buddy or your brother or your president, or he’s you. But the point here is that lots and lots of people seem to believe that laws were broken and this man needs to be held to account for them. You think those accusations are political, fair enough; you have a right to that opinion. But to suggest that the “American” way is to allow the president to be above the law is to disregard absolutely EVERYTHING that this country was founded on.
Lenny Bruce was tried (and convicted) for using the word cock-sucker, in public. It seems pretty obvious that what Bush did was a lot more offensive. I for one would love to see him on trial for it. Not because I think he’s a disgusting sub-human degenerate (though it doesn’t hurt that that’s what I think), but because I can’t see any reason not to accuse him of the things of which he appears to be guilty and see where the chips land. It may turn out that he was entirely a puppet of his regime and there are others who deserve all the blame. We won’t know, however, because it would appear that the American thing to do is sweep the entire mess under the rug and pretend he never existed.
“There is nothing more “American” than holding everyone accountable to the law, regardless of who they are. If this stinks of partisanship to you, then perhaps you should first ask yourself “why am I compelled to feel defensive of this individual?””
And there is nothing more anti-American than wishing a foreign entity could supersede the law and imprison someone in a form of mob justice. I’m not defensive of George Bush. I’m defensive of America. The United States didn’t wage an illegal war. The United States didn’t attack without warning or in secrecy. They brought their case before the United Nations Security Council. The United States operated in the light of day, not in dank corridors filled with thug supporters. The United States brought its case to the world, and I resent 3rd world propaganda that categorizes the manner in which the United States wages war with the manner in which uncivilized nations ( e.g., Iran, North Korea, and Saddam controlled Iraq) wage war. The United States doesn’t sanction USS Stark type rogue ( I did misspell this at first) attacks. Uncivilized nations like Saddam controlled Iraq have that history. I resent the anti-American leftist eroding the obvious the rule of law with 3rd world propaganda. The United States has checks and balances no other country on earth has. The United States is a country of law, and I resent leftist claiming otherwise.
Wow. You can’t possibly believe this. Aren’t you embarrassed to pretend so, it’s not like you will convince anyone of Bush’s innocence by throwing yourself on the knife. I am a big fan of Andrew Sullivan, he speaks for me as I don’t have his talent to articulate. Go read his archives, you will find a true conservative.
“But the point here is that lots and lots of people seem to believe that laws were broken and this man needs to be held to account for them. You think those accusations are political, fair enough; you have a right to that opinion. But to suggest that the “American” way is to allow the president to be above the law is to disregard absolutely EVERYTHING that this country was founded on.”
And the point here is that these people don’t trust the Department of Justice either. They don’t want the Department of Justice to decide if laws were broken, they want enemies of the United States to decide if laws were broken. Houston, we have a problem.
I don’t disagree that it’s regrettable that our own dept. of justice isn’t pressing these issues into court. They should be. I think that the issue here is more than just the illegal invasion (and I take your points on how it can be perceived as legal, but you have to admit that there are many rational and educated people (I suppose they may be clouded by “leftism” but nonetheless, they’re not speaking without some basis in fact) who say otherwise).
The issue is also the manner in which we conducted the war, and specifically, the manner in which we sanctioned behavior that is in violation of the peace treaties to which we are signatories. You can of course say that Bush wasn’t the one doing the torturing, and even not the one deciding that this is the correct course of action, but as the president, shit definitely rolls downhill to him, and he’s ultimately responsible for all the actions taken by the military, and the agencies beholden to them.
Lastly, the world isn’t full of “enemies”. Switzerland isn’t an “enemy”. We frequently have tension in our negotiations with the various western nations that are our “allies”, but at heart we all have the same interests and while there is definitely a political side to all this (and that’s too bad), for me, at least, this is nothing more than wanting to see that when really important laws are broken, people are punished for breaking them, no matter who they are.
Bush is and always was small peanuts. I think there is a much more substantial argument to be made for charging Rumsfeld with having ordered and authorized torture, with the added bonus that you can probably also charge him with treason and reckless endangerment of the lives of the troops under his command. Let the bastard swing.
“Lastly, the world isn’t full of “enemies”. Switzerland isn’t an “enemy”. We frequently have tension in our negotiations with the various western nations that are our “allies”, but at heart we all have the same interests and while there is definitely a political side to all this (and that’s too bad), for me, at least, this is nothing more than wanting to see that when really important laws are broken, people are punished for breaking them, no matter who they are.”
I’ve never said Switzerland is an enemy. I quipped Switzerland is afforded the luxury of a history of neutrality only because the United States has the biggest guns on the planet. I have never insinuated they are an enemy.
One of America’s basic principles of law is due process. Those who wish to forgo that principle are by definition, anti-American. When one can convince me the United States government is actually maliciously trying to impede due process for those at Guantanamo Bay, instead of trying to find a sane, safe way to afford due process, I will join the protest. I won’t petition foreign entities, but I will be the conscience of America. I don’t think the United States is maliciously withholding due process. Its a complicated war with extremely barbaric tactics, where the enemy is targeting civilians. The people here who wish to see a head of state scooped up in a foreign country seem to have no respect for due process, which is anti-American. Thats not a haphazard insult like “asshole” but an actuality. Due process is so ingrained in America, to actively withhold it is anti-American.
[b]
The United States didn’t wage an illegal war. The United States didn’t attack without warning or in secrecy. They brought their case before the United Nations Security Council. The United States operated in the light of day, not in dank corridors filled with thug supporters.[/b]
Sorry, but committing crime in public does not make it legal. The US attacked Iraq without justification or provocation. Using lies to create the pretext doesn’t make it legal.
The US took the case to the UN and didn’t get what they wanted, so went to war anyway.
The United States doesn’t sanction USS Stark type rogue ( I did misspell this at first) attacks.
No, they just blow aircraft out of the sky carrying 296 passengers and claim it was a mistake.
The United States has checks and balances no other country on earth has.
And we just had an administration that ignored those checks and balances or circumvented them.
The United States has become a country of laws, where the laws apply to the average Joe but not political leaders.
@nwahs
“And there is nothing more anti-American than wishing a foreign entity could supersede the law and imprison someone in a form of mob justice. ”
“Nothing more anti-American than wishing…” And if you have your fingers crossed when you’re making this wish? Is it still the most anti-American act in the known universe? How about flying a plane into the Pentagon or the White House? Or the Trade Center? They don’t quite rise to the most anti-American act, do they?
“I’ve never said Switzerland is an enemy. I quipped Switzerland is afforded the luxury of a history of neutrality only because the United States has the biggest guns on the planet. I have never insinuated they are an enemy.”
I’m glad you don’t consider Switzerland an enemy. But whatever Switzerland is, it is because the United States has the biggest guns on the planet. I guess you could say that about almost every country on earth. They all owe something to us because of out military might.
Perhaps, nwahs, you ought to promote the idea of all the nations under our aegis paying a cash tribute to us. The Second Rome. While we make the laws for the other nations, we only obey those we want to.
Let the Swiss mob grab Bush when he goes there to visit his numbered bank account. We have nothing to worry about. William Tell has been dead for hundreds of years. And what have the Swiss done since they dispatched the tyrant Gessler?
pnumi2- Swiss mob. Excellent. I’m still chuckling.
kt
You’re chuckling? Does that mean you finished shoveling the driveway? Or has it stopped snowing?Now that I stopped listening to NPR, the only news I get is from here and google. And to tell the truth, it’s not bad.
pnumi-
I don’t shovel snow. Let’s call it a … perk.
No NPR? Egads. My day would not be complete without, at minimum, a hit of Morning Drive. Then again, I pay them so I’m bent on getting my money’s worth.
Curiously, among my extensive collection of iGoogle pages, I don’t have a Google News feed.
Btw — I wanna set the record straight on a previous comment which was stupid on my part, but not in the way you think: I’m aware that sept is 7 (duh), but I misunderstood your comment– it went something like, “a septuagenarian 14 year old”, and, here’s the stupid part … I added. 70+14=80s. Even before you pointed it out, I looked at my comment and thought, “Wait. Did I read that right?” Obviously, I didn’t. What a maroon.
kt
After I posted that comment, I said to myself, “You didn’t have to say that.” But the moving finger had pressed the submit button, alas.
What I meant was in spite of the fact of my age, I still act and react like a 14 year old high school trouble maker.
Have you not been here? http://news.google.com/
I love not spending 2 hours a day listening to the news. I don’t even know if the groundhog saw his shadow last week. (But it’s just as well. I forgot what it means when he does.)
“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”
That is up to judges to decide. If they consider waterboarding torture, Bush broke the law by authorizing it. The DOJ and in particular the Office of Legal Counsel is not a court. Their opinion does not hold the legal power of a court decision.
Another point I wanted to mention. If you want to draw comparisons you should consider Eichmann’s trial in Tel Aviv rather than a hypothetical Dutch doctor.
Its hard to argue waterboarding is allowable and within legal limits when we have ourselves prosecuted others for it as war-crimes.
In any case, the DOJ is obligated by law and treaty to investigate the allegations, and bring charges if warranted. Then there is a trial. Then there is a legal precedent as to whether or not it was illegal war crimes or not. In any event, if convicted I have no doubt Obama would issue an immediate Pardon.
But to expect a Democrat in the WH to undertake an investigation of that sort virtually ensures that when the GOP wins back the WH, they will launch their own investigations into anything and everything Obama did as payback.
Party over Patriotism, after all… and the Rule of Law.
I’d agree with Frum if there were any path whereby these issues could be litigated in an open court. All Frum is arguing, really, is that we have to accept the legality of the executive branch’s determination that it can define the limits of its own authority. A previous poster is on the mark: is there any point where an administration can be held to account for its actions? And if not, why call this law?
Let’s imagine a hypothetical which should be utterly uncontroversial: the US executive branch plans and carries out a genocide but has its own lawyers call this legal based upon some definition of presidential war powers. Does Frum think there is any line which the US can cross which would legitimize a foreign court’s getting involved?
The travesty is that the US government ever made questions such as these essentially nonjudiciable (at least in open court). That predates the Bush administration. And if history is any guide this can probably only end in one way: with high-level officials doing something egregious because they believe they’re above the law. It’s as if Frum and people like him had never heard of Lord Acton’s dictum.
Just to play devil’s advocate, one could say precisely the same thing about Osama bin Laden. I’m not suggesting the OBL not be brought to justice, but I think the legal argument as phrased isn’t quite valid.
You headline this item with:
“Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”.
The United States failed to do that. Torture happened. Over 100 people were murdered in the course of it, and untold suffering was inflicted on human beings by the intentional actions of our government. These facts are not in dispute.
Instead of whining about what other nations should or want to do about it, why not take a hard stance about what “looking forward, not backward” really means for our country and the world? Its a sick, sad joke that will haunt us for years to come.
And oh yea, Bin Laden is dead- blown up @ tora bora in 2002 by thermobaric weapons. No proof of life since, just chopped to hell video and audio clips.
To the posters noticing it was not American citizens on American soil: anyplace that we fully control is America, including Cuba, embassys, aircraft carriers in international waters, etc.
Jose Padilla is an American, who has been tortured. Bradley Manning is being tortured right now. Any discussion about what they did, or wanted to do, or deserve, is meaningless: all that matters is the fact of the torture.
To the poster taking comfort that we have the biggest guns in the world: we don’t. We have a large conventional force, but Russia, China, and others are immune to those forces. Nobody is invading us, but our big guns are less and less able to secure our interests in the world, and shitting away our honor over fools like George W. Bush, Dick Cheney, and Barack Obama is a horrible bargain.
Someday sophists like Frum will realize the price of that bargain: it is huge and growing. If Obama had the honor he claims, he would accept one-term and do what needs to be done to drain the swamp, but when short-term power is the sole object, you get what we have, and thus we proceed.
“Its hard to argue waterboarding is allowable and within legal limits when we have ourselves prosecuted others for it as war-crimes.”
Actually, it’s easy. All of you have to do is be a hypocrite.
The best scenario would of been having this prosecuted in the American court system and if President Bush and his administration was found guilty that he would of been pardoned similar to Nixon was by Ford. I just wish Americans who care about the rule of law would of had their day in court on this important issue.
Ah. But remember what happened to Ford after he pardoned Nixon. He got the hook.
The only way this works is if ex-governor Blagojovich, performs the pardoning.
Probably the worst TV pundit on this topic is Olbermann, who constantly fixated on arresting Bush and Cheney for war crimes.
Thank goodness he’s now relegated to an obscure leftist channel that very few folks watch…except that scion of fairness Dan Rather.
I won’t miss him, even if I agree with him on this particular subject.
The salient point is that they should have had their day in court – can you imagine if they had conducted the trial and then found Bush and Cheney innocent by mitigating circumstances?
In re point 4, hasn’t the torture been committed outside the US? I may be wrong, but wouldnt a more fitting analogy for Bush’s actions be: A Portugese drug capo orders his men to deal drugs in the US, because it is allowable in Portugal? He then goes to the US, and is arrested?
David,
I apologize if someone has already raised this, but what about the Nuremburg prosecutions? It’s unlikely that Herman Goring or Albert Speer violated any of the laws of their country. Even if they had, suppose they hadn’t? Were those prosecutions an affront to law?
I think your Harvard law school professors are rolling in their graves.
In America, there are THREE branches of government little Davey. And its the judicial branch that decides what the law means, not the executive.
You should stick to writing speeches, because I used to think you were bright until I read this.
Torture = wrong. No matter who authorizes it for what reason, anywhere. It’s beyond politics. It’s beyond right or wrong. It’s a fundamental human rights issue (and an issue our society once used to take seriously).
The ongoing efforts to rationalize and defend its “legalization” are appalling. The lack of intellectual honesty is staggering. It’s truly a sign of how debased our society has become.