In an uncoerced confession in his new memoir, Decision Points, former President George W. Bush proudly admits that he personally signed off on the waterboarding of Khalid Shaikh Mohammed in 2003. Former Vice President Dick Cheney made the same admission in a televised interview shortly before he left office. In one sense, this is nothing new. It had long been reported that the CIA’s use of what the Bush administration euphemistically called “enhanced interrogation techniques” had been approved at the highest levels of the administration. But now both Bush and Cheney have publicly admitted to specifically signing off on the CIA’s torture tactics. Their direct personal admissions now seal the case against them.
What case, you might ask? There is in fact no criminal or civil case against the former president or vice president for these actions. And both men no doubt felt comfortable admitting they had authorized what the world recognizes as torture because they believe they are politically immune from being held accountable. Even before the midterm elections, Barack Obama had insisted that he wanted only to look forward, not backward. With a strengthened Republican Party after the elections, it is even less likely that Bush or Cheney will be held accountable by the Obama administration. On November 9 the Justice Department announced that no criminal charges would be brought against the CIA agents who destroyed videotapes of the torture interrogations; that part of the cover-up, it seems, has succeeded.
But Bush and Cheney are not immune. In fact, the United States is legally obligated by the Convention Against Torture, a treaty we helped draft, and have signed and ratified, to investigate any credible allegations of torture by a person within US jurisdiction. And if the United States does not take action, other nations are authorized to do so, under the principle of “universal jurisdiction,” which treats torture as so heinous that its perpetrators can be investigated and prosecuted by any country if their own country fails to take corrective action.
Chile’s former President Augusto Pinochet found this out the hard way. After flying to London for medical treatment, he was served with an arrest warrant issued by a Spanish magistrate investigating him for, among other things, authorizing torture. Pinochet argued that he was immune from such action as a former head of state, but Britain’s highest court rejected that plea, and Pinochet was placed under arrest. He was eventually sent back to Chile on medical grounds, but he spent the last years of his life there fighting criminal charges arising out of his acts as president.
Investigating and arresting the former president of Chile is one thing. Investigating and arresting the former president and vice president of the United States would be another matter altogether. No doubt Bush was relying on just that calculation in admitting his guilt in his memoir. And it may be that Bush and Cheney are deliberately admitting their crime at a time when they know they will not be prosecuted, in hopes of putting the issue behind them and providing cover to those below them who also approved of the crime. How can we prosecute anyone lower down when the president and vice president have admitted to giving their approval?