C. Dixon Osburn Director, Law and Security
George W. Bush canceled a scheduled speech in Geneva on February 12 at a dinner in honor of the United Israel Appeal. Organizers say they canceled the speech, according to The Washington Post, because "the calls to demonstrate were sliding into dangerous terrain." The Center for Constitutional Rights, Amnesty International and several European human rights groups, however, said that they were urging Swiss prosecutors to open a criminal case against him once he arrived in the country.
In his memoir, President Bush cavalierly said that he authorized the water boarding of Khalik Sheik Mohammed, the self-professed mastermind of the attacks on 9/11, and that he would order water boarding again to secure our country. Water boarding has long been considered torture under the Geneva Conventions, the Convention Against Torture, and domestic law, until President Bush's lawyers attempted to redefine torture and authorize it in violation of international law. John Yoo and Joseph Bybee redefined torture as actions leading to "serious physical injury such as death or organ failure."
Former Secretary of Defense Donald Rumsfeld should take heed. In his book published this week, Known and Unknown, he too justified the Administration's use of torture. He and President Bush have some public support. According to a 2009 Associated Press poll, half of Americans support torture in some circumstances.
The torture committed in Afghanistan, Iraq, Guantanamo and elsewhere in pursuit of those who attacked us on 9/11, though, is a war crime. President Bush and Secretary Rumsfeld cannot escape that. The only question is whether they will be held to account.
The Mayor of London, Boris Johnson, said in November that President Bush could be arrested if he set foot in London. Johnson said,
It is not yet clear whether George W. Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker.... The real trouble -- from the Bush point of view -- is that he might never see Texas again...[as officials]...place some handcuffs on the former leader of the Free World....
Other European governments have already initiated efforts to hold former Bush Administration officials and agency operatives accountable. Under the Geneva Conventions, all party countries to the Conventions exercise universal jurisdiction, meaning that they have an affirmative obligation to prosecute war crimes committed by their citizens or others who set foot in their country.
In Italy, a court convicted the former CIA station chief and twenty-two other CIA officers and contractors in absentia for the 2003 kidnapping of a Muslim cleric, Abu Omar, in Milan and unlawfully rendering him to Egypt where he was allegedly tortured.
In Spain, prosecutors filed criminal charges against six senior Bush administration officials, including Alberto Gonzales, John Yoo, Jay Bybee and David Addington who approved the harsh interrogation methods in Afghanistan, Iraq, Gitmo and other sites.
Other countries have examined or are reviewing the role of their own officials in connection to the United States program of torture and rendition post 9/11, including Australia, Canada, Lithuania, Poland and the United Kingdom.
While certain European countries are stepping up to their obligations to exercise universal jurisdiction in holding to account those accused of war crimes, the United States is not. The Department of Justice Office of Professional Responsibility determined that John Yoo and Jospeh Bybee, now a judge on the Ninth Circuit Court of Appeals, "showed poor judgment," but not professional misconduct, when they drafted the legal opinion authorizing the CIA to engage in water boarding. Special federal prosecutor, John Durham, declined to pursue criminal charges in connection with the destruction of CIA tapes showing water boarding.
The reluctance of the United States to hold its own to account is good news for President Bush. He is likely to live out his days in the United States without fear of prosecution. Sure, President Bush cannot travel to London or Geneva or anywhere outside the United States without the legitimate risk that he would be arrested for allegations of criminal conduct (he has traveled to China and the Middle East and a few other countries since he left office), but can still attend the Super Bowl.
It is too soon to say whether there will be a full accounting of the misconduct alleged against President Bush, Secretary Rumsfeld and others. Their memoirs, though, rather than a clear defense of their actions, may catalyze further calls to account.