Bush Admits Authorizing Waterboarding

by Kevin Jon Heller

A couple of weeks ago, New Stream Dream accused me of never believing individuals who — like Khadr and Lynne Stewart — confess to committing crimes.  Well, I believe this confession:

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

Sadly, because we are supposed to look forward and not backward — unlike other states, as Glenn Greenwald constantly reminds us — Bush will never be held accountable for admitting that he committed war crimes and crimes against humanity.  But he certainly should be.

http://opiniojuris.org/2010/11/04/bush-admits-authorizing-waterboarding/

22 Responses

  1. The Khmer Rouge was put on trial only after they fell from power.  No one in Kenya has been put on trial.

    So how, exactly, have any countries – ever! – put on trial anyone from the government currently in power?  Because it doesn’t seem that any have and your chosen examples provide exactly zero support for the proposition that they have.

  2. Bush is still President?  Who knew?

  3. Touche.

  4. ICC is waiting.

  5. KJH: Bush will never be held accountable for admitting that he committed war crimes and crimes against humanity.  But he certainly should be.

    You are way off on this one.  Bush Jr was among the greatest Presidents the US was blessed to have.  What exactly is it, that you fail to comprehend with respect to the struggle betwen US/Western democracy and these fanatics who want us all to convert or die.  You know, Jon, you too will be treated as an infidel and given the “humane” choice of converting or dying.  Bush Jr. understood this is a serious ideological conflict.  This is for real.  Yes, drastic situations call for drastic action – I appreciate the dangers its a slippery slope and governments can take advantage BUT as Rambo said “Sir, they drew first blood.”  Bush Jr was spot on – you need to defend yourself and country from those who want to  destroy you.  Sorry if that does not comport with your lovely ideas (i.e., “ideals”) of war.  Maybe Bush Jr should have offered this captive a visit to the White House for some coffee and cake and asked him nicely if he had knowledge of any forthcoming terror act.  Really, Jon, I respect your intellect greatly but you need to be realistic about what is going on.  
    JWB

  6. The previous comment doesn’t deserve any meaningful comment, except: Rambo? Did he really quote Rambo?

  7. I don’t think anyone named Johnnie Walker Blue expects to be taken seriously…

  8. Bush had a top secret DoJ legal opinion (since released) that said waterboarding wasn’t torture….and that no law, neither domestic nor international, to which the US was bound prohibited the practice.  So he approved a practice that his lawyers had told him was lawful, effective and necessary, and was not torture as defined by law.  Why wouldn’t he do it again, under those circumstances?   I do not now, and did not then agree with that legal opinion;  I do not here defend either the practice, the decision or the opinon; but I do remind you of the process and the context at the time.

  9. @JohnnyWalkerBlue –

    If you want to be taken seriously, quoting Rambo probably isn’t the way to go – just saying…

    It’s amazing how it’s torture if it’s done to our people, yet not torture if we do it to others.  Hypocrisy much?

  10. Can I insert another random movie quote, please?  “Say hello to my little friend!” Scarface.  I would think that both of these quotes have the same level of relevance to waterboarding. 

    On a legitimate note, I agree with Alan’s assessment of the analysis George W. went through when he authorized the waterboarding.  I haven’t read enough about it to decide one way or the other whether it actually is torture.  However, it rings true to me that someone planning terrorist attacks against civilians loses any claim to decent treatment.  I know that puts America on weak moral ground but what leader wouldn’t want to protect his people?

  11. KSM was captured by Pakistan and rendered to the CIA, a civilian agency. Thus while you might argue that what happened to him violated Human Rights law, it was not a “war crime” because it did not involve someone in military custody.

    As to crimes against humanity, according to the ICC statutes ” torture … and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights … but may fall short of falling into the category of crimes under discussion”

    So whatever he confessed to, it was neither a “war crime” or a “crime against humanity”.

  12. @Howard Gilbert

    I love these kind of posts (irony). Someone exclusively argues with the law to prove a legal result. One step is obviously missing here…on what FACTS was the legal analysis grounded? Arguing that torture was a systematic practice in the Bush years isn’t that way off, considering the policy paper of Cheney, the – painfully legally flawed – torture memos by the US Justice Department (talking about political influence), the comment Bush made in his book, the well known US rendition practices, etc.

    As for the war crime: the commission of a war crime requires a person to be in ‘military custody’? Really? What is the legal basis for this assumption? Where do you find it in the ICC Statute (there is only one ICC Statute by the way, not statutes)? I must have missed something.

    I know I get kind of picky here – sorry, an old lawyer’s habbit – but if an act is ‘isolated’ pursuant to Article 7 of the ICC Statue, then it is not an ‘inhumane act’. Simply speaking, it’s either-or. An act is only then an ‘inhumane act’ IF committed as part of a widespread or systematic attack. Otherwise it’s just an ordinary crime, not an inhumane act. 

    Finally, as for waterboarding and its legal qualification as torture: I recommend reading UN.Doc. A/61/44 (2006), page 71. This should enlighten the sceptics.

  13. Ben,

    You are, of course, absolutely right about Howard’s “military custody” requirement, which isn’t a requirement at all.  War crimes require a nexus between the perpetrator’s act and the armed conflict; nothing more.  And the nexus is obviously present here.

    Howard also does not understand the contextual element of crimes against humanity.  The analysis is a bit trickier here, but the systematicity of the Bush administration’s torture regime, spread out as it was across the globe, almost certainly qualifies.

  14. Note that Howard refers to the ICC Statute for a definition of crimes against humanity.  Curiously, he does not consider Article 8 of the ICC Statute which defines “war crimes” and of course lists “torture,” and “outrages against personal dignity” as examples of war crimes.  The key consideration under the statute is whether such acts are associated with an armed conflict, and when they were inflicted upon individuals who are, for example, placed hors de combat by reason of detention.   See, e.g., Art. 8(2)(C). There is no “military custody” requirement as others have noted.

    Also, for Nathan, Alan, and others, the mere fact that an individual relies on legal advice to the effect that waterboarding is legal does not mean that he/she cannot be prosecuted for engaging in the act.  As Kevin has pointed out on this blog before, a reliance on legal advice establishes a possible affirmative defense known as entrapment by estoppel in a criminal proceeding.  Even if one believes that the OLC’s secret opinions are the kind of authoritative pronouncement that would establish the defense, the individual’s reliance on that legal advice still must be reasonable.   The defense is greatly disfavored even in US courts and is not recognized in the Rome Statute.

  15. Milan,

    “a reliance on legal advice establishes a possible affirmative defense known as entrapment by estoppel in a criminal proceeding.” 

    From a purely academic point of view, I agree. However, let’s not forget the facts here. In 1983, a man named James Parker and others were sentenced in Texas to jail for up to ten years for…waterboarding. Bush was governor at that time. Parker didn’t get a pardon by Bush. One may wonder why not, if Bush believes that waterboarding isn’t torture…

    The only excuse for Bush I can come up with is that he simply forgot that case from 1983 and strongly relied on Yoo, who btw received his legal education in Yale. The torture memos, under the guidance of Yoo, ‘forgot’ to mention the 1983 case…of course… Needless to say that both US and international law was painfully misinterpreted in the memos. Everyone can have a look. They are freely available on the internet. A google search will do.

    If there was no intention behind all this and Yoo was not able to legally comprehend was torture constitutes, the legal education at Yale must had been a disaster.  Even though I havent’t gone to Yale, I find this hard to believe…

  16. I don’t mean to suggest that Bush’s reliance on the legal opinions provided to him necessarily constitutes a defense….my only point is that he took the position, based upon advice of counsel, that waterboarding was not torture, nor otherwise illegal.  He apparently still believes it; nobody has disabused him of the notion.  So that is why he says he would do it again.  There is a way to relieve him of the misconception, but I don’t see it happening……I had a professor in my first year of law school who would pose a hypothetical, and when the student response was “He can’t do that,” the professor would reply:  “Can’t hell, he just did.  What are you going to do about it?”

  17. The Rome Statute Article 8 requires a violation of the Geneva Conventions which in turn require the act take place within the context of an armed conflict. KSM was captured by the Pakistani ISI pretending to be a civilian and living in Rawalpindi, far beyond the range of any active battlefield.

    Kevin, I do not see how you can claim that KSM, while in the custody of a civilian agency in Rawalpindi and then somewhere in the Middle East or Europe, was protected by Article 3 of the Third Geneva Convention without also admitting that he was also an enemy combatant/belligerent subject to targeting by lethal military force. The geographic scope of the Geneva Conventions extends only as far as the military scope of the armed conflict. Thus it would seem that your argument here implicitly justifies the use of Predator drone strikes not just on the border, but throughout Pakistan and plausibly anywhere else where enemy combatants may be found. It may also be that if the CIA is constrained by the Geneva Conventions in the treatment of detainees then it is also authorized to remotely pilot the drones against enemy combatants not captured.

  18. Howard,

    You are absolutely right.  I was not thinking specifically about KSM when I claimed that Bush authorized the commission of war crimes; I was thinking about all of the detainees captured in Afghanistan, which clearly satisfy the nexus.  KSM may have the requisite connection to the IAC/NIAC in Afghanistan or the NIAC in Pakistan, but I cannot be certain.  If not, his mistreatment would have to be prosecuted as a crime against humanity (assuming the existence of a widespread and systematic attack).   I should have been more clear in the post.

  19. I don’t see this as a new revelation… and as for the legality of waterboarding in this context, we’re still waiting on a court case, I suppose… no one seems overly eager to bring charges against anyone.

  20. Howard and Kevin’s debate seem to forget that the 1984 Convention Against Torture criminalizes torture regardless of the chapeau elements of either war crimes or crimes against humanity.  The emphasis should not be on ‘war crimes’ and ‘crimes against humanity’, codified in a treaty of which the US isn’t even a party. It should be on the fact that torture is absolutely prohibited under all circumstances, and the 1984 Convention sets an obligation on the United States to establish its jurisdiction over acts of torture committed in its territory or by its nationals.

  21. Just some nitpicking

    1 I agree that UNCAT provides sufficient cause for prosecutions,
    2 For some reason we are forgetting the 1996 War Crimes Act, US law! Under it breaches of the Geneva Conventions are defined as war crimes. This was already noted in the infamous torture memos. The solution offered by Yoo et al was to place detainees outside of the GC. Enter the enemy combatant: explicitly claimed not to be protected by the GC. In 2006 the Supcreme Court found that the GC do apply in the War of Terror. This immediately made all those involved liable under the WCA. Then mysteriously there was the need to retroactively (!!!) rewrite the WCA (with the Military Commissions Act) in such a way that all those in danger of prosecution, read: Cheney and OLC, would no longer be criminally liable for war crimes. IANAL but the convoluted way in which the lawyers of the Bush administration tried to get rid of liability under the WCA to me suggests at least an understanding that prosecution for war crimes was possible. My question is: why would any administration be interested in (creating) loopholes regarding war crimes? Mens rea?

  22. ”Can’t hell, he just did.  What are you going to do about it?”

    @Alan… This, to me, is the real issue.  We can argue endlessly about the relatively vague definition of torture.  To me, waterboarding is a brutal practice that I would deem torturous.  However, I acknowledge that it is fairly difficult to clearly categorize it as torture, or not torture.

    What could be done about it if he did break international law?  Even more, what would be done if he were deemed to have broken international law prohibiting torture?  Probably nothing would be done. All the angry rhetoric towards Bush as an offender of international law really doesn’t do much at all. Unfortunately, international law proves once again to be not-so-clear and without any meaningful enforcement mechanisms that would affect US decision-making in the future.

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