No One's Above the Law

December 13, 2011

Still from Amnesty film on waterboarding
Still from Amnesty film on waterboarding

Last Thursday the Washington Post columnist and Bush administration speechwriter Marc Thiessen launched a vitriolic attack on Amnesty International for advocating for former President Bush’s arrest during a trip to Africa.

Amnesty urged officials in Ethiopia, Tanzania and Zambia to detain Mr. Bush so that his role in ordering the torture of detainees in US custody could be properly investigated. Thiessen called for official Washington to shun Amnesty for taking this position, which he said took the organization out of the political mainstream and into the fever swamps:

“Conservative groups concerned with freedom, democracy, and human rights should similarly refuse to work with Amnesty. The group should pay a steep reputational price for stupidity such as this. If Amnesty wants to behave like a left-wing fringe group, it should be treated as such.”

In fairness, a lot of Americans are uncomfortable with Amnesty’s call and it is worth taking a moment to unpack the issues.

Our starting point is a simple one: Democracies are supposed to uphold the law and honor their treaty commitments.

In his memoir Decision Points, President Bush admitted ordering the waterboarding of detainees in US custody. Like it or not, that’s a criminal offense. Every single time waterboarding came up in US jurisprudence prior to 9/11 it was considered torture. Just because John Yoo can’t use LexisNexis doesn’t mean it ain’t so.

Amnesty has campaigned tirelessly for the United States to open an investigation into the human rights abuses committed by the United States within the context of “the Global War on Terror” but President Obama has made it clear that he has no intention of digging up the past.

The primary jurisdiction for investigating the actions of the Bush administration rests with the United States but not exclusively so. The Convention Against Torture places an obligation on its signatories to act if there is evidence that an individual coming within their jurisdiction is associated with acts of torture. The Convention currently has 147 state parties.

The CIA ran black sites in Lithuania, Romania and Poland – countries in which the Enhanced Interrogations Techniques (EITs) authorized by President Bush would be considered criminal acts under domestic law. All three states are subject to the European Convention on Human Rights and investigations into the CIA’s activities on their soil cannot so easily be wished away.

This was well demonstrated in November 2009 when a court in Milan, Italy, convicted 22 CIA officers and a US Air Force officer in absentia of kidnapping a Muslim cleric, Hassan Mustafa Osama Nasr, and rendering him to Egypt where he was repeatedly tortured.

This is unlikely to be the last such case arising from the policies of the Bush administration.

Amnesty International seeks the application of law equally without fear or favor. We take the same position on abuses that occur in United States that we do regarding those that occur in any other nation.

Holding politicians from powerful nations to the same standard to which they themselves hold the leaders of less powerful nations is not a “left-wing” position – it is a just position.

The Bush administration supported the International Criminal Court’s indictment of President Omar al-Bashir of Sudan in 2008, just as it supported the trials of Slobodan Milosevic, Charles Taylor and Saddam Hussein.

Over the years Amnesty has advocated for the arrest and trial of plenty of other world leaders and I suspect that a number of the names on that list would meet wholeheartedly with Mr. Thiessen’s approval.

We campaigned for both President Augusto Pinochet of Chile and President Alberto Fujimori of Peru to be brought to justice for the human rights abuses, including torture, they authorized in the name of national security. President Fujimori is currently still in jail.

There is no reason why the United States could not emulate those countries like Peru and Chile that have sought to hold their former leaders accountable for their actions.

Earlier this month the former Governor of Illinois, Rod Blagojevich, was sentenced in an American court to 14 years in jail for corruption. He broke the law and, regardless of the high office he once occupied, he was held accountable. That’s the way it is supposed to be.

In her recently published memoir, No Higher Honor, former National Security Adviser and Secretary of State Condoleezza Rice wrote that what had attracted her to George W. Bush as a presidential candidate was his commitment to principle:

“What was right mattered.”

Yet under President Bush the United States adopted torture as state policy. This is something no other US President has ever felt compelled to do – even during moments of great national peril, far greater than the threat posed by Al Qaeda.

In 2002 America became a country that tortured its prisoners. That is no small thing. It was wrong and it was illegal.

What is right does matter. President Bush turned his back on that principle and he should be held accountable for the crimes that were committed as a result.

In the final analysis, Marc Thiessen’s argument comes down to “my country right or wrong ” – a characterization that I suspect he would embrace with enthusiasm.

However, Amnesty International, as its name suggests, supports universal values. We believe that all human beings are entitled to certain inalienable rights. We also believe in the rule of law and the equality of all individuals before it.

The United States used to believe in those things too.

It is a measure of how far popular debate has sunk in this country over the past decade that a columnist on a national newspaper can seriously ridicule this as a fringe position.