The Case against George W. Bush

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Why there should be a case against George W. Bush
under torture law
February 19, 2011
by Michael Ratner,
Special to CNN
There was widespread support among scores of human
rights groups and many others for recent efforts to
have Switzerland open a preliminary investigation for
torture against former President George W. Bush during
his planned (and now canceled) visit to Geneva.
 
 
Our belief is that Bush violated U.S. and
international law when he authorized torture,
including the water boarding of detainees.
 
 
 Torture is
a crime under a federal statute, Torture Statute, as
well as under the War Crimes Act, and the Convention
Against Torture, of which the U.S. was a major
proponent.
 
 
 
The support for the investigation stems from Bush's
open admission that the authorized water boarding, the
necessity people feel to hold torturers accountable if
we are to end torture, and the utter failure of the
United States to investigate Bush and others. The
U.S., as the most powerful country in the world, is an
example to the world: If the U.S. can openly torture,
so can every other country.
 
 
 
There have been some naysayers to the attempts to
internationally prosecute Bush and other officials.
They have it wrong.
 
They want a world in which if a
country does not investigate its own torturers, then
no other country should. They argue, as David Frum did
in a recent column on this site, that efforts by the
Center for Constitutional Rights and its partner legal
organizations to seek criminal accountability of
former President Bush in Switzerland amount to "law as
a weapon of politics" and "assault upon the basic
norms of American constitutional democracy."
 
 
 
Let's correct one major misconception some have about
the basis for this action and how it relates to the
U.S. legal system at the outset.
 
 
The Convention
Against Torture, which mandates that Switzerland and
146 other countries including the United States
investigate and prosecute torturers, is part of U.S.
law. Its ratification and its enforcement is part of
our constitutional democracy.
 
 
 
The anti-American and anti-Constitutional acts were
Bush's decision to authorize torture and the U.S.
failure to hold him accountable.
 
 
Politics are being
used as a weapon against the law by claims that these
are policy choices. They are not. As the State
Department Legal Advisor Harold Koh stated, torture
can never be a "policy choice." Likewise, the
investigation and prosecution of our homegrown
torturers is a legal obligation and should not be
driven by politics.
 
 
 

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Frum accuses CCR and others of demanding that
"Switzerland override an American decision about which
Americans should be prosecuted for violating American
law." Yes, it is true that the demand is for Swiss
courts to investigate torture where the U.S. has not.
But the U.S. decision was one that was not just about
American law.
 
 
U.S. law includes an obligation for the U.S. to
investigate and prosecute torturers, and through its
ratification of the Convention Against Torture and its
support of a provision for universal jurisdiction in
the Convention, it recognizes the obligation for
Switzerland to do so as well when a torturer is on
their soil. Switzerland was being asked to do no more
and no less than what the United States has committed
to do itself.
 
 
 
There are to be no safe havens for torturers. None.
Torture is a crime that no circumstance -- even
national security -- can ever justify. It cannot be
redefined to make acts that have long been illegal
suddenly permissible.
 
 
The memos Bush relies on as a
defense are no defense at all: as was found by the
American prosecutor in Nuremberg, providing legal
advice that justifies and leads to war crimes or
torture is criminal. And it cannot protect from
prosecution.
 
 
 
Torture is also one of the few crimes, like piracy,
slavery and genocide, where there is a global
commitment to prevent and punish its commission.
 
 
 
In 1980, a U.S. Court of Appeals declared that "the
torturer has become like the pirate and slave trader
before him hostis humani generis, an enemy of all
mankind." The federal court judges found that because
torture is a wrong that is so egregious and so widely
condemned that it is of "mutual concern" amongst the
nations of the world, a torturer could be brought to
justice wherever found. The "mutual concern" to
eradicate torture was expressed in the United Nations
Convention Against Torture. President Reagan signed
the treaty, and the U.S. became a party to the
Convention in 1994.
 
 
 
It is only the failure of the U.S. to act -- to abide
by its own legal obligations -- that would have
resulted in Switzerland prosecuting Bush for torture.
 
 
 
Or Spain, for that matter, where there are three on-
going proceedings for torture involving U.S.
officials, including one open investigation related to
torture at Guantánamo where evidence is being taken.
 
 
 
The case against Bush in Switzerland is, in some ways,
a commentary on law and politics in the United States.
But not in the way Frum presents it. Sadly, it is a
commentary on the failure of the U.S. legal system to
demonstrate its strength and independence from
politics.
 
 
Bush has openly admitted authorizing acts that
constitute torture. The case against him will be
investigated and tried -- if not in the United States
then in a country that has the courage to give meaning
to its legal obligation to investigate and prosecute
torturers.
--
The opinions expressed in this commentary are solely
those of Michael Ratner.
 
--
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