Q & A: War Crimes and Diplomatic Immunity

Dear Spencerian Editors:

I would like to know if the current talks of investigating Bush top officials for the authorization and use of torture can be extended to the former President and Vice President as they ultimately approved them?

I think I heard once that if a President left office before he was charged, he would be free forever from prosecution under the guise of diplomatic immunity. I want to know if this is true and if so where this is codified in the law.

This includes the possibility of war crimes.

Tom P.

Dear Tom --

Thanks for your question.

Let's talk about the prosecution of former President Bush and former Vice President Cheney for war crimes.  Well, this is one of those things that I for one am glad we have a current president with a cool, deliberative head.

I'll be honest with you.  I think that Bush and Cheney both probably did authorize the use of "harsh interrogation techniques" -- torture -- on captured terrorists.  I think they thought they could get good information out of the likes of Abu Zubayda and Khalid Sheikh Mohammed, and I think they thought that most Americans would be pretty okay with it, actually, because hey, terrorists.

I'm sorry if this comes across as flip, Tom, but I do think that is what they believed at the highest levels. 

I also think that they actually knew that there were not weapons of mass destruction in Iraq, but had every intention of going into Iraq with the explicit -- explicit -- purpose of killing Saddam Hussein.  The implicit purposes -- getting rid of WMD, bringing democracy to Iraq, whatever -- were what was sold to the American people.  People look at me like I have a hand growing out of my head when I say this, but I really believe that this was a war of vengeance on the part of George W. Bush because Saddam Hussein had plotted to kill the senior George Bush.  If you think that sounds dumb, well, just ask yourself this: ten years ago if I had said to you that your government would torture people, would you think that just as silly? 

Alright.  So war crimes and diplomatic immunity.  I think I see where you're going, Tom.  If, say, President Bush were to be tried for war crimes in Geneva, would he be able to beat the rap because of diplomatic immunity?  I'm not an expert in international law, but I don't think so. 

For some help understanding just what diplomatic immunity is, let's go to some experts.

First, here's a link to the Wikipedia entry on diplomatic immunity.  Here's what caught my eye on this: the chart at the bottom.  It breaks down what level of immunity applies to which sort of diplomat.  The kinds of diplomats include, "diplomatic," "consular," and "international organization." 

I ask you, Tom: which one is President Bush?

Again, I'm not even a lawyer, so I'm nowhere close to answering this question, but my guess is someone, somewhere is working on it.  Maybe at the Department of State, where we can see some further detail on diplomatic immunity.  Also take some time to check out eDiplomat.  They have some good detail on this as well.

I want to go back to Obama and thinking deliberately.  Let's assume, for a minute, that the diplomatic immunity question is answered -- Bush cannot claim it -- and is free to be tried for war crimes in an international court of law.  We are a long, long way from that.

This is really a political blog, Tom, and this segment is "We Answer Your Political Questions," so let me try this from a political angle.  You've got one side which says this is all very simple: "The guy (guys, I guess, if you include Cheney, which you should) lied to get us into a war he wanted to get into.  He broke a law, or several laws, domestic and international.  No one is above the law.  He should be prosecuted."

Okay.

Then you have the other side which says: "We are in an international global war on terror, and the usual rules don't apply.  Bush made us safer by taking out Saddam." 

You may not like it, you may not like the war, but there is some precedence for a coalescing of power around the presidency in a time of war, namely FDR and Lincoln.  How much?  That's a little tougher to say, and in fact is currently a cornerstone of this debate. 

Here's what I'm trying to say, Tom.  This may appear to be a straightforward legal issue.  And in some ways, it may be -- but it must be unwrapped in politically delicate way.  There can't be one whiff of political calculation of any kind in this investigation or even any discussions at the highest levels around this issue.  If this is seen as simple political retribution against a president we Democrats don't like (and we're already seeing some of this, actually), you can be assured that prosecution for international war crimes will go slower, not faster.

A lot of my blogging colleagues are frustrated -- as are a lot of TV talking heads -- that President Obama hasn't just thrown Bush and Cheney in the county lock-up, shipped them off to the International War Crimes Tribunal, and had them put to death immediately.  I happen to think he's going about it the right way.  He's letting the lawyers do their work.  He's releasing information as he can.  He is trying to encourage us all to do two things at once -- tough, considering collective America has the attention span of a gnat -- which is to answer all of the complex legal issues thoroughly, and to think about the future, not about the past. 

Some see this as delaying justice.  I see it as setting the stage.

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Everybody has questions about politics.  Why not email me and ask yours?  I'll try my best to answer it.

Comments

[Dyke Davis]

I wish this debate was about how the laws of our country are being stretch to such limits that over time there will be no law.
This means that when the privilege class goes about doing something on a massive scale like invading a country, which so happens has the third largest proven reserve of oil and gas in the world. They can wait for or create a pretext to do so, regardless of the millions of innocent lives that will result from this pre-planned invasion.
Creating not only a pretext to invade, but to include the legal cover after the fact; especially designed to shield the president who is part of the conspiracy from the beginning.
The point here is a million people and a large part of the infrastructure of Iraq was destroyed in this ventetta or resource theif, yet we're not talking about the innocent deaths nor the liability of the infrastructure destruction that will eventually lead to more innocent death.
We're talking about American legal protection of a few privileged individuals who set this monstrousity into motion.
It is shocking that so few a people can so brazenly walk among us without a international outcry and leave us to debate the merits of their actions.
I believe that we are on our way to destroying all credibility as a nation or world held accountable under the "law".
Either we as a country completely investigate the post invasion planning or face a world which will start seeing that the law has no merit.
We are the enemy that we need to bring to juctice!