Mr. Bush, homebound

>> Sunday, January 18, 2009

Over the years, I've sometimes wondered why I read Slate. It's a pretty comprehensive distillation of the news, but often a frustrating one. But now I think I can say that whatever else Slate is, it's definitely blog fodder. Today we have yet another post inspired by yet another exeunt Mr. Bush piece.

This one is an article titled, "Mr. Ex-President - How George W. Bush can make the most of the rest of his life," posted on Thursday the 15th. Writer Christopher Beam outlines several of the things other ex-presidents of the United States have done, focusing particularly on "The fade into relative obscurity favored by Gerald Ford and Ronald Reagan; and the activist, globe-trotting, elder statesman model as practiced by Jimmy Carter and Bill Clinton" (and mostly the latter option) before briefly noting a few other things that ex-presidents have done after leaving office, such as becoming a behind-the-scenes presidential advisor. (Curiously enough, Mr. Beam overlooks the option of becoming a member of a superhero team. Mr. Bush seems like he would be at least as capable as Gleek. Oh well.)

Beam's piece is clearly intended to be a soft piece, a kind of journalistic cotton candy. It's not exactly not news analysis--Mr. Bush's post-presidential activities may well be of national interest, particularly if he tries to follow the path of a Carter or Clinton (it seems worth noting in this respect, too, that Mr. Bush's father has recently emerged from several years of relative privacy to use his clout and influence for post-Katrina relief and other worthy causes). On the other hand, Beam clearly isn't trying to provoke, since he marginalizes one of the President's obvious and most-likely options with little comment and doesn't talk about the elephant in the room that may kill any chance of Mr. Bush becoming a globe-trotting elder statesman.

That elephant, of course, is the recent interview Judge Susan Crawford (ret.), the convening authority of military commissions, gave to Bob Woodward for the Washington Post, in which Judge Crawford said, ""We tortured [Mohammed al-]Qahtani," (italics in original) and, "I think the buck stops in the Oval Office."

I think there is absolutely no chance that the United States will prosecute Mr. Bush, notwithstanding the laudable (and overdue) statements of Eric Holder at this week's committee hearings regarding his confirmation as President-Elect Obama's Attorney General: "Water-boarding is torture. … It would violate the international obligations that all civilized nations have agreed to—the Geneva Conventions." Indeed, Mr. Holder himself told the Senate committee, "We don't want to criminalize policy differences that may exist between the outgoing administration and the Obama administration," when asked if the Obama administration would look at the criminal culpability of members of the Bush Administration.

That having been said, however, the policies of the Obama Administration aren't binding on the rest of the world, and it's the rest of the world that may keep Mr. Bush at home for the rest of his life.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment technically requires the United States (a signatory) to extradite an alleged offender to a "State Party" claiming jurisdiction, but that seems like a request the Obama Administration (or any other Presidential Administration) is unlikely to honor, particularly when the alleged offender is a former President Of The United States.

Other nations, however, may be inclined to actually honor their international agreements should Mr. Bush step off an airplane and onto foreign soil. Consider, for a moment, Mr. Henry Kissinger: Mr. Kissinger, a former U.S. Secretary Of State, National Security Advisor and Nobel Laureate,1 is wanted in Chile for war crimes charges related to his alleged knowledge of or involvement in the infamous Operation Condor, and in 2002, while visiting England, was the subject of a petition for arrest filed in the High Court in London based on his involvement in the bombing of the Indochinese Peninsula during the Vietnam War (a Spanish judge also requested Mr. Kissinger's detainment by Interpol over the same issue; British authorities refused the request).2 Such activity wasn't unprecedented, either: had Kissinger been arrested and/or extradited for trial, it would have simply followed the trail blazed by the arrest of former Argentine strongman General Augusto Pinochet in 1998.3

The upshot of all this is that Mr. Kissinger has found his former globe-trotting rather curtailed, since there are now all sorts of places he can no longer visit without some possibility of being arrested and extradited. (I am not sure where Mr. Kissinger has ventured to travel since 2002; I am sure he feels reasonably safe returning to the UK, since the UK declined to cuff him and ship him seven years ago.)

Complicating Mr. Bush's situation is another bad decision4 that was made during his administration: the increased use of "extraordinary renditions" to deport alleged terrorists for questioning in foreign countries (presumably places even less concerned with human rights than the United States has been during the past eight years). Even if the doctrine of Universal Jurisdiction is rejected (see note 2, infra), it is quite conceivable that Mr. Bush has managed to establish territorial jurisdiction over his administration's activities in bog-knows-how-many different countries, like a getaway driver leading a high-speed freeway chase across multiple state lines. Whatever happened in Poland or Morocco or Afghanistan or Thailand et al. may indeed stay in Poland or Morocco or Afghanistan or Thailand or wherever--unfortunately, should a judicial official in one of these countries seek Mr. Bush's detention on a visit to one of these countries or should a judicial official make a formal request of some other country Mr. Bush is visiting and see it honored by the local authorities, Mr. Bush may find himself staying in one or more of these places as well.

It's far from inconceivable. The prerequisite isn't, as you might assume, the participation, compliance, or consent of American authorities--it's the existence of foreign judges and/or court officers ballsy (or crazy) enough to file and serve papers on Mr. Bush if he happens to be in the wrong place at the wrong time, which could be anywhere in the world depending on whether we sent somebody there to be tortured or on whether judicial officials proceed on a novel-but-semi-established legal theory.

Mr. Bush may be well-advised to stay at home.

And if he does stay at home? Beam writes:

There's one thing Bush should not do, which is spend the rest of his life revisiting his mistakes. Sure, every president deserves a memoir or two. But ex-presidents must strike a balance between defending the past and moving on. The most successful ones use their ex-presidencies not to defend their legacies but to enhance them. Carter's humanitarian work—peace negotiations, elections oversight, not to mention the eradication of the Guinea worm and river blindness—has all but eclipsed his downer of a presidency. Likewise, Bush would be smart to tackle a cause that won't remind everyone of his failures. Don't promote freedom. Fight AIDS in Africa—an area in which the Bush administration excelled. The best way to make people forget your screw-ups is to score new wins.

This is what I meant when I wrote at the very beginning that Beam marginalizes one of the most-obvious and likely possibilities for Mr. Bush. Richard Nixon may be the only other man to leave the office with so many darkening storm clouds following behind him. After a brief period of laying low, Mr. Nixon returned from the shadows with a series of self-serving memoirs and books on foreign policy, somehow eventually managing to rehabilitate himself with enough people to find himself a sort of foreign-policy guru and enlightened elder by the time of his death. I have no idea what Mr. Bush will do with his retirement, but I will not be the least bit shocked if this is the course Mr. Bush elects to follow: a few quiet years, and then a career as a writer, tangentially revisiting his mistakes in the guise of "experienced" books on foreign policy and national security, hoping that enough people eventually forget his sins or at least that the pain has been dulled by ten or twenty years of tumultuous events, looking for approval and vindication and a sort of blissfully-forgetful forgiveness. Until someday he's revered by some and tolerated by most and only loathed by a small cadre whose passion and vitriol seem seems small and regressive to the conventional wisdom of the masses who have re-accepted the disgraced man who somehow managed the neat trick of atoning without actually doing anything to atone.

We'll see. Either way, Mr. Bush may have a great deal of time at home to think about it.

1That last achievement being included for accuracy and completeness, not because Mr. Kissinger is or was a particularly worthy recipient of the Nobel Peace Prize.

2The interested reader might also check out this Wikipedia entry on "Universal Jurisdiction," a controversial legal theory that holds that some offenses are so despicable they are a crime everywhere, and thus may be tried anywhere.

As a general matter, a criminal case must be charged and tried where the crime occurred. (As a general matter; changes of venue is a complicated and separate issue.) Universal Jurisdiction, if it became a prevailing legal concept, would be a radical departure from a long legal tradition. That having been said, the basic premise of post-WWII international human rights law is that certain acts are "crimes against humanity." The atrocities committed by the Nazis, for example, were not crimes specifically against Jews, Germans, or Europeans, but crimes against the entire world and therefore prosecuted by the world. For this idea--the idea of crimes against humanity--to be more than mere rhetoric, it almost has to follow that a criminal shouldn't be immune from prosecution because of his address, or that if one-hundred-and-seventy-nine nations are appalled by one nation's conduct but that one nation is perfectly okay with it, then nothing at all can be done about it unless the nation is worse-armed than NATO or a UN Peacekeeping Force.

3Jonathan Powers short opinion piece from 2001, "Henry Kissinger Has Become a Very Nervous Person," proved to be somewhat prescient; Powers' "some lone magistrate somewhere - another Baltasar Garzon [sic]" turned out, actually, to be Baltasar Garzón.

4During President Bush's "farewell" speech, he apparently said, ""You may not agree with some tough decisions I have made, but I hope you can agree that I was willing to make the tough decisions." I find this quote to be an astonishing non sequitur. A good number of the decisions that we all agree Mr. Bush was willing to make weren't merely disagreeable (President Clinton's decision to implement "Don't ask, don't tell" was disagreeable; President George Herbert Walker Bush's decision to try to ride out the economy in 1992 was disagreeable) but were in fact moronic, inconceivable, illegal. To suggest that a decision to authorize the use of a procedure associated with the Spanish Inquisition (for instance) is merely something we all might "not agree" with is to suggest that reasonable minds might differ, that a question of whether or not to engage in despicable, criminal acts prohibited by national and international law is somehow akin to an argument over whether Van Halen was better with David Lee Roth or Sammy Hagar at the mic.


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