Mischief Or Justice, Ctd

by Conor Friedersdorf

In response to David Frum, and his case that President Bush shouldn't be arrested for okaying torture, I've heard from several law professors, whose main arguments are consolidated below:

1.  There is extensive academic literature by noted international criminal law scholars such as Cherif Bassiouni and Jordan Paust which details exactly how high officials of the Bush administration can be prosecuted, step-by-step.  Bassiouni’s recent book is a good starting point.
2.  Even Reagan administration solicitor general Charles Fried agrees that the factual predicate exists to prosecute Bush and Cheney under the torture laws.  He makes an argument against this on entirely political groundsand that is the path taken by most law scholars who have tried to defend Bush.  They argue that a prosecution would be politically inflammatory and would undermine the nation's political culture.  That may be true, but it has nothing to do with the law.  Still it has to be acknowledged that political considerations often influence prosecutors decisions to bring charges or not, even though our legal system works hard to discourage this.
3.  Frum quotes selectively from the Torture Convention, omitting key passages, and distorting the Convention’s meaning. ("Article 6:  Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.  Such State shall immediately make a preliminary inquiry into the facts.... Article 7:  The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution....")
4.  It's misleading to say that the Torture Convention is not self-executing.  The idea of "non-self-executing treaties" is not a concept in international law, certainly not with regard to the Torture Convention, but is instead a complicated and contested doctrine that US courts have developed with regard to the effects of US-ratified treaties in US domestic law.  It can be used to block private litigants from using a treaty obligation to bolster their position, but it has no bearing on what other governments may or may not do.  It therefore has no bearing whatsoever on a decision to prosecute a foreign head of state.
5. Frum fundamentally understands universal jurisdiction.  It does not cover domestic drug sales or ordinary murder, much less euthanasia. It is available for only a very narrow range of carefully defined crimes, most of which are related to warfare.  Torture and “disappearings” have been included within the scope of universal jurisdiction for generations.  Frum’s example of drone warfare is another give away in this regard.  There is a great deal of controversy over whether the use of drones is wise and whether international law authorizes it; but there is little basis to say that universal jurisdiction norms could be invoked to go after a foreign head of state for the use of this type of weaponry.  Such a claim would be quickly batted down, as are most private efforts to go after heads of state.  But torture is a different matter, and on this point, prosecutors and courts are poised and prepared to go forward.
6.  The US has embraced and applied universal jurisdiction for generations; it did so explicitly when it ratified the Geneva Conventions and the Torture Convention and when it enacted the Torture Act and the War Crimes Act.  These instruments explicitly create jurisdiction over individuals regardless of their nationality.
7.  George W. Bush did not obey all the laws of the country in which he lived.
8. Frum is correct that Bush would argue reliance on advice of counsel and point to the torture memos. On this point, several facts need to be considered:  this is an affirmative defense on which Bush has the burden of proving all the facts with clear evidence.  Second, it is far from clear that the defense of advice of counsel is available in a torture prosecution.  The legal precedents, to the contrary, suggest that because of the absoluteness of the torture prohibition, no such defense could be recognized.  And even if there is such a defense, it likely would be available for people down the chain of commandfor a CIA interrogator, for instanceit is not likely to be accepted as a defense for the ultimate policy-maker.
9.  Beyond this, the torture memos are a transparent attempt to circumvent domestic and international law by creating a “golden shield” against criminal prosecution. Indeed, Jack Goldsmith openly acknowledged this fact.  There's no reason why foreign governments should respect them and there’s every reason to expect that prosecutors will actually take the memos as evidence of criminal intent (as has already occurred in the criminal investigations in Spain). Remember that such was the Bush Justice Department’s confidence in these memos that they quietly rescinded them all before leaving office, and Obama rescinded them in a public order immediately after his inauguration.
10.  The US has a long history of holding foreign officials accountable for international crimes even when domestically authorized: Nuremberg, Tokyo, the Former Yugoslavia, Rwanda, Alien Torture Statute cases.
11.  Frum's rhetoric not only challenges universal jurisdiction, but plain old territorial jurisdiction, implying that US citizens and officials should not be punished by foreign governments for crimes committed on foreign soil.  In other words, Frum is arguing for impunity.  But impunity itself is a serious violation of international law, not to mention fundamental principles of the American Constitution.

I am out of my depth here, so consider Frum's argument and these rebuttals to be me airing both sides of the argument – and if David responds I'll let you all know.