George W. Bush: To Prosecute, Or Not To Prosecute?

Yes he admits he ordered waterboarding. But was it a crime?

An interesting pas de deux in the National Post blog today, where Barbara Kay and Dan Gardner take opposing views on whether or not George W. Bush should be arrested for ordering torture during his presidency. Neither of them makes a totally satisfying argument.

Kay’s is the least persuasive. She attempts to convince us that waterboarding is not really torture, because what the United Nations Convention Against Torture (UNCAT) defines as torture, U.S. law would simply define as cruel, inhuman, and indecent treatment. This is irrelevant, because both the U.S. and Canada are signatories to UNCAT, which would seem to take precedent over domestic American law, particularly since the question at hand is whether Canada should push for Dubya’s arrest. She goes on to make two seemingly contradictory statements, which are that torture is extremely effective in extracting information from suspects (there’s hardly consensus on that point), and that it was barely ever used by the Bush administration. If it was so effective, why wasn’t it used more often? And so what if it was only used three times? Doesn’t that mean that Bush should only be charged with three counts of ordering torture instead of 40?

Gardner argues that Bush should be investigated because waterboarding is definitely torture. “Domestic American courts have convicted defendants for the very acts they authorized,” he writes. “So have American military tribunals… The American government’s own statements on human rights routinely describe waterboarding and the other techniques as “torture” when they are committed by foreign governments.” Gardner says next time Bush comes to Canada, “Canadians will have to decide which we value more: Good relations with the American government or the rule of law that is the foundation of western civilization.” That’s a false choice, because what’s at stake isn’t just good relations, but the entire system of modern international relations. If we went around arresting criminal leaders every meeting of the UN would end with half its members being carted off to the hoosegow. In the long run that would lead to a much more dangerous world than letting Bush retire to his Texas ranch.