It’s already been an interesting year on the torture front, starting with both Bush and Cheney discussing their direct involvement with “enhanced interrogation” techniques, through to yesterday’s decision by the top judge at Gitmo that, well, “enhanced interrogation” is an enhanced way of saying the word “torture.”
Personally, I think it’s pretty damned odd. For seven years, the only official discussion of high-level involvement in America’s movement to the dark side has come through clenched teeth. What little has been said to the public has been sculpted to give two simultaneous and contradictory messages about our top leadership: they’re badasses whom you don’t want to mess with, and they’re completely uninvolved with this war crime stuff. But now, in the waning week of the Bush II presidency, it’s suddenly okay to open up?
I can think of two reasons why they might do this. On the one hand, given the general way that it seems like everything Bush has managed in the last eight years has gone completely into the toilet, they might think that it’s worth buffing up what little shine they can on the situation before they leave the presidential limelight.
On the other, more paranoid hand, for the next five days, George W. Bush still has an absolute power to grant pardons, and this might be the warm-up to a blanket Get Out of Jail Free card.
I’ve been hearing a few murmurs about how irredeemably awful this would be, mainly from the sort of people who already think W is irredeemably awful. I happen to agree on both counts. However, I can think of at least one reason why granting a pardon would be a Very Bad Idea for both the country, and for the people receiving the pardon.
Let’s go back to the halcyon days of the 1990s, when people like Saddam Hussein ran countries and had a fondness of torturing the unfortunate people who found themselves in them. Since those national governments had little interest in enforcing criminal laws against their own dictators, it was generally agreed that it would be a good idea if the world had a set of criminal standards that could be applied when national systems broke down, or were deliberately designed to fail. And so the International Criminal Court came into being.
The United States signed the treaty but did not ratify it, and we’re currently on record as having no interest in joining the Court. The Bush Administration claims that this gives the international community too much power over Americans who are accused of war crimes, and the Democratic party to date has shown few signs of official disagreement.
Back in the day, those of us who were in favor of the ICC, and appalled that the US might not join it, pointed out two very good reasons why Americans were effectively immune to ICC prosecution: 1) Americans very rarely commit war crimes, and 2) we have a functioning legal system. The ICC only has jurisdiction when national rule of law fails; if a national system is “unwilling or unable” to prosecute the accused, then the ICC can serve as the court of last resort.
Perhaps you see where I’m going with this. But if not: as I read it, there is absolutely no way that George W. Bush himself or anyone in his administration can be prosecuted for war crimes in an international tribunal. As of today, that is. But anyone who receives a presidential pardon is untouchable by our judicial system, and therefore might fall into ICC jurisdiction.
(That is, if they authorized or committed war crimes in Afghanistan. The US and Iraq never joined the ICC, so Americans and Iraqis can torture the bejesus out of each other in either country, and the ICC can’t do squat about it.)
Call me crazy, but I’ve always been of the opinion that war crimes are the sort of thing Americans should avoid, and prosecuting people who appear to have committed war crimes is an excellent way to deter such behavior in the future. But I wouldn’t wager money on it. Counting on Democratic spinelessness is quite possibly the best way for the Bush administration, not to put too fine a point on it, to get away with murder. The problem comes if they decide they want more insurance.
If this administration falls under ICC jurisdiction, it would be a clusterfuck of galactic proportions. I can think of a thousand ways it would splinter both the domestic and international political arenas, making enemies out of natural allies, and mortal enemies out of people who would be otherwise more civil. It would not be good for the accused, and it would not be good for the country.
And at the same time, if Bush issues even a single torture pardon, the ICC cannot even think about backing down from its jurisdictional requirements. The last message you want to send to war criminals is, “Make your country powerful enough, and you have nothing to worry about.”
The best way to handle this is at home. And that means a credible investigation, whether it leads to dismissing or indictments, acquittal or conviction. I personally expect that anyone who committed or authorized torture in the last seven years will get off scot-free. But let them do so legally.
The best way to handle this is at home. And that means a credible investigation, whether it leads to dismissing or indictments, acquittal or conviction. I personally expect that anyone who committed or authorized torture in the last seven years will get off scot-free. But let them do so legally.
I agree. But it will never happen.
First of all, the Bush Administration didn’t (as is often claimed) “legalize torture.” They redefined torture. Some would even say they defined torture, since there was very little on the books beforehand about exactly what was and was not torture.
Semantics? Yes, but that’s the point. By changing the rules and then following the new rules, they are reviled, but not criminal. In fact, they quite famously went to (then White House Legal Counsel) Alberto Gonzalez and asked him exactly what they could and couldn’t do to avoid legal liability.
Dumb, but not so dumb…
Two other reasons we’ll never see prosecutions: if the American executive branch were subject to the ICC, we’d go on a rather impressive string of successive presidents, vice presidents and other high-level officials who are accused of some crime or another. To the point of making the ICC a national joke. My proof? None – just a gut feeling…
Second: As President, Barack Obama may one day find himself in a situation where he has to make decisions about how to treat prisoners. Moral high ground aside, convictions on this topic for Bush administration officials set precedents that restrict what Obama can do in those situations. A lack of convictions (or even investigations) leave his options open.
Nevermind the assertion that, as a great and wonderful human being, Barack Obama would never do anything that remotely resembles anything the evil, nefarious George W. Bush would do. Legal precedent can be tricky, and it does him no good whatsoever to run the risk of restricting himself. And so, we get a belief that we need to look forward as opposed to looking backwards.
Okay, so you seem to be laboring under some misinformation. Let me try to divide the discussion into two categories: opinions about what is and is not torture, and the international legal environment.
First of all, the Bush Administration didn’t (as is often claimed) “legalize torture.” They redefined torture. Some would even say they defined torture, since there was very little on the books beforehand about exactly what was and was not torture.
I hadn’t intended to reopen this old debate, mainly because it’s one of those areas that’s so self-evident to me that I find it depressing to argue. Hearing you talk about wiggle room on torture still causes the same gut reaction that I’d get hearing you argue in favor of wiggle room on slavery or anti-semitism; it’s just not something that I ever thought would be on the American political agenda, and I’m still somewhat sickened that it is.
That said, let’s set aside the debate over what is and isn’t torture, as I expect little room for common ground there. However, we can discuss what is and isn’t legal under US law, and there you’re wrong that there was little on the books; there’s a whole library of law ranging from federal to state to UCMJ to international treaty. Note: when we sign a treaty, such as the Geneva Conventions, Senate ratification of same makes it US law.
Your argument seems to be that Bush acted legally because he arranged for DOJ to change the law… and, well, last time I checked there were separation of powers issues there as laws are passed by Congress. But where you’re right is that the debate between what is legal and illegal under American law is an American issue, and it’s up to us to define that through our own legal system.
That’s exactly the point I was trying to make in my essay—the ICC is for failed states with no legal systems, and criminal states which exclude its leaders from its own laws. People living in states with functioning legal systems have nothing to fear from ICC prosecution, as their charter prohibits jurisdiction in such cases.
However, you have to judge the situation when dictators skirt the law—if Robert Mugabe puts a bullet in the head of his political rival, you can’t expect the Zimbabwean courts to prosecute him. That’s precisely what the ICC is for. And US leaders are immune from that prosecution—unless Bush opens up the only possible loophole that could make this a circus.
if the American executive branch were subject to the ICC, we’d go on a rather impressive string of successive presidents, vice presidents and other high-level officials who are accused of some crime or another.
Sorry, no, simply false. See above about jurisdiction. Case in point, if the My Lai massacres had occurred after the ICC had been in place, they wouldn’t have fallen under ICC jurisdiction because American jurisdiction was functional. We had trials, and we had mostly acquittals, and that was the end of it.
Unfortunately, you seem to have fallen for the common lie that the ICC acts as some kind of supercourt that can trump the Supreme Court, which is expressly not what it does. It’s the criminal court for places that don’t have functioning criminal law.
Barack Obama may one day find himself in a situation where he has to make decisions about how to treat prisoners. Moral high ground aside, convictions on this topic for Bush administration officials set precedents that restrict what Obama can do in those situations.
Um. Okay, look at what you’re saying here. “We have to be careful about how we prosecute war criminals, in case any future president chooses to commit war crimes.”
Presumably we agree there should be some limits on presidential power, yes? GWB cannot shoot Barack Obama in the head if he thinks that Obama will be bad for the country. Obama should be restricted from setting up WWII-style internment camps for all Muslims. Agreed?
This gets back to the emotional argument I made earlier: I distinctly recall arguing for years that the US was effectively immune from the ICC because Americans don’t commit war crimes. We don’t have a Gaza Strip. We never buried hundreds of civilians in open graves. And when we do have a My Lai, we have a mature legal system which prosecutes the guilty and gives full legal protection to the accused.
And now we seem to be debating whether Obama should have the right to open up a new Abu Ghraib, and order genital electrocutions. Right? That is what you’re supporting, yes?
OK, you either read my comment too quickly, or I wasn’t clear, so let me try again:
However, we can discuss what is and isn’t legal under US law, and there you’re wrong that there was little on the books; there’s a whole library of law ranging from federal to state to UCMJ to international treaty. Note: when we sign a treaty, such as the Geneva Conventions, Senate ratification of same makes it US law.
Agreed that there’s plenty of law on the books, but my understanding is that while many laws says “torture is illegal,” very few explictly define what torture is. I remember reading that The Geneva Convention, in particular, defines torture extremely vaguely (can’t find the link right now, unfortunately).
I’m not making a moral argument at all – purely a legal one (and given that I’m not a lawyer, I’m basically talking out of my ass here…) Nonetheless, what I’m saying is that the DOJ’s actions helped protect the Bush administration from legal liability – not that they changed the law.
Sorry, no, simply false. See above about jurisdiction.
Understood & agreed (I learned that from your original post). I was offering a hypothetical: IF the US Government was under ICC jurisdiction, then given the political differences between many countries and the US, I feel as though we’d become a political target, and the credibility of the ICC would decrease – at least here in the US (much like the UN Human Rights Commission has done in recent years).
And now we seem to be debating whether Obama should have the right to open up a new Abu Ghraib, and order genital electrocutions. Right? That is what you’re supporting, yes?
Absolutely not. I’m not discussing Obama’s (or Bush’s) rights here. I’m talking about what Obama is incented to do and not do as an incoming President. He’s not compelled to investigate Bush, so it becomes his choice. I’m saying that by choosing not to pursue convictions, he limits any potential precedent that might one day be used against him (even if the situation is different).
I don’t believe George W. Bush is a war criminal. I think he’s taken several unpopular stands, many of which have turned out to be spectacular failures, and has blatantly covered his ass from a legal perspective, to the point where those who disagree with him politically are lusting after a conviction for something….anything…..
Now that he’s on his way out, though, the question becomes totally different. How does it help Obama to punish Bush? A moral victory, perhaps? Red meat for his most ardent supporters? Probably.
But how does it hurt him? By making the legal hoops that every president must jump through even more complex. Better to do nothing and have any “same as Bush” arguments on Sunday morning talk shows, rather than in courts of law. If the situation never comes up – no harm, no foul. But if we find ourselves with military prisons, special tribunals, enemy combatants, etc. in the next four years, he’ll probably be glad he left Bush alone.
Agreed that there’s plenty of law on the books, but my understanding is that while many laws says “torture is illegal,” very few explictly define what torture is.
There might be competing definitions of torture—we’ve signed a lot of treaties and passed a lot of laws. But it would be incorrect to say that torture is undefined. Check out Article 1.1 of the UN Convention Against Torture, which became US law when we ratified it in 1994. (After signing it, FWIW, during the Reagan administration.)
Interestingly, in addition to torture, Article 16.1 of the same treaty prohibits “cruel, inhuman, or degrading treatment when such acts are committed at the instigation or with the consent of a public official.”
I remember reading that The Geneva Convention, in particular, defines torture extremely vaguely (can’t find the link right now, unfortunately).
If I can say so without offense, I think your grasp of Geneva is fuzzy; notably, it’s Conventions (plural) and it covers a different swath of law than the torture treaty. (Wikipedia has a good article; I just checked it myself before I got too fuzzy.) Geneva only covers wartime activities, and any claim under Geneva would first have to counter Bush’s proposal that enemy combatants are not prisoners of war. Torture is universal, on the other hand; the treaty specifically states that nothing is an extenuating circumstance allowing for it.
Nonetheless, what I’m saying is that the DOJ’s actions helped protect the Bush administration from legal liability – not that they changed the law.
Right, but what’s key here is that “legal liability” in your sense is a domestic concept. There’s a sequence of legal events which could cause the issue of prosecution to head to the ICC, which essentially serves to backstop the world’s kangaroo courts. As I read it, the only thing that could possibly make the US system sufficiently kangaroo would be a presidential pardon for actions which might have ICC jurisdiction.
Seeing as how it’s 3 AM on 1/20, it’s looking like this isn’t going to happen, so I can say in Bush’s last hours that he at least has acted less reprehensibly than I thought him capable of. This still leaves the issue of treaty violations, but as I understand it, that’s not an issue for the International Criminal Court, it’s for the International Court of Justice if a court is necessary. People don’t get tried there, states do. More likely, such issues are hashed out with diplomacy—which in turn might require the US to promise prosecutorial investigations.
IF the US Government was under ICC jurisdiction, then given the political differences between many countries and the US, I feel as though we’d become a political target, and the credibility of the ICC would decrease
Again, I think you believe this thanks to a fuzzy understanding of how the ICC works. Under normal operating procedures, the US is as likely to fall under ICC jurisdiction as it is to fall under Penn Band PGA Board jurisdiction. No argument that there are people who have axes to grind against us, but there are other venues in the international community for them to do so. (And that’s a good thing; it’s kind of the point of diplomacy.) Again, I encourage you to check out the Wikipedia entry for the ICC for a good overview.
much like the UN Human Rights Commission has done in recent years
Ugh. No argument as to its governing body, but it’s important to note that the UN bureaucracy is still doing important work here. It’s similar to what went on with the American Red Cross funding scandals a few years ago; lots of people took that to mean that the International Committee of the Red Cross was also corrupt, which wasn’t the case.
We are definitely agreed that the UN as a whole has a serious image problem in the US, and that this is in part deserved. However, most of the reasons why most people think the UN is flawed is based on disinformation they’ve been fed about it.
I’m talking about what Obama is incented to do and not do as an incoming President. He’s not compelled to investigate Bush, so it becomes his choice. I’m saying that by choosing not to pursue convictions, he limits any potential precedent that might one day be used against him.
Well, it says in Article 6 of the Convention Against Torture that he does. (More interestingly, taking Articles 5 and 6 together, if any of the countries where the prisoners are from indict a US national for torture, we have to take him into custody.) Article 4 states that offenders are the people who commit torture and the people who are complicit in it; we’d need real lawyers to determine whether Bush and Cheney’s admissions in the last two weeks rise to the level of complicity.
And taking all that as read, I completely disagree with you that this kind of “flexibility” is desirable. (Or morally defensible.) It’s not a question of precedent, since we’ve signed all sorts of documents that made these actions illegal here. Yes, it might be desirable to a president, but we citizens are supposed to like living in a nation of laws, not men. I’m quite happy having laws that say that the president can’t torture prisoners, drown puppies, or taunt the happy fun ball.
I don’t believe George W. Bush is a war criminal. I think he’s taken several unpopular stands, many of which have turned out to be spectacular failures, and has blatantly covered his ass from a legal perspective, to the point where those who disagree with him politically are lusting after a conviction for something….anything….
I think that if you read the UN Convention Against Torture, it’s kind of hard to say with a straight face that we didn’t commit torture and/or acts which don’t rise to the level of torture but which are still cruel and degrading. The question is how far up the chain such things went, and (surprisingly) Bush and Cheney decided to say the buck stopped with them as part of their exit interview.
Look, here’s the deal. We’ve beaten people to death. We’ve jailed people without trial. Maybe, most of the time, we thought we had good reasons, and maybe, most of the time, the people we did this to were genuine bad guys. But sometimes they weren’t. And it wouldn’t matter if all of them were Genghis Khan’s love children with Adolf Hitler, because we’ve enacted laws saying that we can’t do these things.
So, one of two things will happen: the most likely outcome is that everyone who worked within DC city limits will go on to lucrative lobbying and speaking careers, making millions while attempting to buff their historical images. Roosevelt got away with Japanese concentration camps, and half a dozen presidents got away with native American genocide; we have plenty of historical precedent to let Bush get away with whatever crimes he committed.
Personally, I think that big questions like these are why we have legal systems. You have a possible crime, you give it to a prosecutor. If there’s sufficient evidence, you indict and take it to court. What’s key here is that we have to at least start this process at home, so if nothing else we can tell the world, “no, these people are emphatically not criminals, and here’s the legal documentation that proves it.”
Otherwise, the international mechanisms I cited above could definitely make this very, very, messy.
Now that he’s on his way out, though, the question becomes totally different. How does it help Obama to punish Bush? A moral victory, perhaps? Red meat for his most ardent supporters? Probably.
Brian. This is not about punishing Bush as a partisan action. This is about who we are as a nation. Believe me, if Obama pulls anything like this, I’ll be the first guy out on the street waving a sign. And if I had some way of putting Roosevelt and Truman into this system, I would.
I don’t want a moral victory here. I want to live in a country that doesn’t torture people, and which prosecutes people who do. For that matter, I want to live in a country which prosecutes officials whom jail people without trials, let alone whether they get beaten once they’re there.
But if we find ourselves with military prisons, special tribunals, enemy combatants, etc. in the next four years, he’ll probably be glad he left Bush alone.
This is my point exactly. Before Bush, we had an established legal system of military tribunals and military prisons. We had no enemy combatants—Bush invented that term precisely so anyone he named as such would fall into the legal crack it created. We don’t “find ourselves” acting illegally and in contradiction to international treaty; we act illegally as a matter of volition. Usually, we call such people “criminals” and subject them to punishment, partially to deter other people from acting illegally in the future.
Your argument seems to be, “I find those laws inconvenient and difficult, and it is easier to pretend they’re not there for people in high office.” So if you’re not explicitly in favor of torture (or, apparently, the option to torture in the future), you at least seem to be in favor of the Divine Right of Kings.
OK, we’re obviously not going to agree on this, so I’ll just skip to your restatement of my argument:
“I find those laws inconvenient and difficult, and it is easier to pretend they’re not there for people in high office.” So if you’re not explicitly in favor of torture (or, apparently, the option to torture in the future), you at least seem to be in favor of the Divine Right of Kings.
No. I find these laws largely theoretical in the real world, because they don’t ever seem to come up in (any) court of law. They always seem to appear in Op-Ed pieces or blog posts about why someone really IS a criminal, even though they’ve never been charged with a crime or convicted of a crime (c.f., George W. Bush in your prevoius comment). As long as we’re restating arguments, you seem to have blown right past “Innocent until Proven Guilty” and parked yourself on “Guilty without even being charged.”
As for the Divine Right of Kings, again – no. All I’m saying is that if we find ourselves at war in 2011, and Obama has to deal with prisoners, he will be glad he didn’t pursue prosecutions for the Bush administration. EVEN IF he follows the Geneva Conventions to the T. EVEN IF he declares every captured soldier a prisoner of war, and gives them full access to the rights of an American citizen, and EVEN IF we “stay true to our morals and our ideals,” as he said when he decided to close Guantanamo Bay in 2010.
Why do I say this? Because lawyers like to twist laws. Because some right-wing nutcase will find a way to equate a POW’s trial to a military tribunal and impeach Obama on that technicality. Because the second we question a prisoner, a fleet of lawyers will swoop in and claim we tortured him/her, as per the Cheney/Rumsfeld convictions. Because politics doesn’t go away, even though it seems to have for these last couple of days.