War Crimes trials for Bush and Cheney? An interesting discussion

How likely is it that George W. Bush and Dick Cheney will face war crimes trials in the future? The revelations from the Senate Hearings the last few days make it appear somewhat more likely. Here is what Scott Horton has to say in The New Republic today.

Tuesday's Senate Armed Services Committee hearing provided the latest evidence that top Bush administration officials directed the use of torture techniques on detained suspected terrorists. Three panels of witnesses traced the use of highly coercive techniques back to the high echelons of the administration. The day ended with the grilling of William J. Haynes II, the former general counsel of the Department of Defense and a protégé of Cheney's chief of staff David Addington, who is now widely viewed as the "station master" of the administration's torture policy. And in April, ABC News reported that officials including Dick Cheney, Colin Powell, and Donald Rumsfeld had held a series of meetings to discuss the use of specific torture techniques on detained suspect terrorists. The ABC report amplified earlier stories which said the decision to destroy videotapes of interrogations of suspects in CIA captivity involved four senior White House lawyers and other senior figures.

At the same time, Philippe Sands's new book The Torture Team reveals the falsity of White House claims that the push to introduce torture techniques came from interrogators in the field. Sands demonstrates that the decision to use techniques like waterboarding came from the top, and tracks the elaborate scheme to make it appear that the practices began with a request from Guantánamo.

These disclosures and others have put the issue of war crimes on the front burner. Major General Antonio Taguba just released this statement in the forward to a report just out by Physicians for Human Rights: "There is no longer any doubt as to whether the current administration has committed war crimes," Taguba says. "The only question is whether those who ordered torture will be held to account." In a House Judiciary hearing on June 5 looking into the rendition of Canadian software engineer Maher Arar, for instance, members pressed to know if sufficient evidence had been presented to warrant a criminal investigation into the conduct of administration officials; all three witnesses (including the author) answered affirmatively. In other hearings, witnesses have treaded lightly and experienced frequent failures of recollection, perhaps driven by a concern over self-incrimination. And, indeed, in what may be a sign of things to come, 26 American civil servants are being tried in absentia by an Italian court in Milan for their involvement in the rendition of a radical Muslim cleric to Egypt. So, is it really feasible for Bush administration officials to be tried for war crimes?

So the conclusion is that - Yes, War Crimes were committed, and Yes, they were instigated and organized out of the White House by at least five top administration attorneys who acted on the guidance of the President and the Vice President.

Mark Kleiman, discussing a conference held at Massachusetts School of Law at Andover, adds his analysis to the issue:

"Here's their case, as I understand it, with my reactions to each item in italics following that item.

1. The United States has inflicted torture on captives in the course of the wars in Afghanistan and Iraq, both directly and by the use of foreign intelligence services as proxies. [Certainly true. BushCo officials have admitted waterboarding, hypothermia, stress positions, and sleep deprivation.]

2. Torture is forbidden by domestic and international law. [True.]

3. The relevant domestic statute provides the death penalty if the victim dies. [True.]

4. Liability under that law isn't limited to those actually turning the rack; those who give the orders are also vulnerable. [True, though again the issues of proof are complex.]

5. George W. Bush, Richard Cheney, and other senior officials ordered that torture be carried out, both as a matter of general policy and in specific instances. [Seems likely, but establishing beyond reasonable doubt exactly what orders were given, by whom, with what knowledge of how those orders would be carried out would be a nightmare at trial.]

6. The law provides no exemption for officials, or for wartime actions. [True, though no doubt John Yoo will write a brief arguing that the President's Commander-in-Chief power makes him constitutionally invulnerable to criminal liability for issuing such orders.]

So the case that Bush, Cheney, and a cabal of a few of their inside supporters committed war crimes has ceased to be in much doubt. The question remains whether they will ever be tried for their crimes.

The general conclusion seems to be that they will not be tried in the United States, but that other countries may well arrest and try them if they visit the wrong nation after leaving office. A recent precedent was the arrest of Augusto Pinochet in Great Britain on a Spanish warrant. Age and ill health allowed Pinochet to avoid being tried. It is very unlikely that Bush could use a similar excuse.

Bush better enjoy his current trip to Europe as Chief of State. Once he leaves office, any trip back there will involve exactly the risk of arrest that Pinochet suffered. Certainly there are many in Europe who would be happy to see Bush or Cheney suffer such a fate.

Bush may well need his rumored Paraguayan land near Brazil and Bolivia.