Switzerland, that beautiful, peaceful, mountainous, neutral country. The country that couldn’t find it in itself to oppose Nazism, or do anything about the Holocaust in World War II. Because after all, they were a tadpole, and would have gotten run over by Germany. So better not to say anything. Whether it is ever right or moral to remain neutral in the face of evil is a discussion better left for another day. But today, that Switzerland has finally stood up for a moral cause, or at least has allowed others to stand up for a moral cause on their turf, with their legal system. What great moral cause?That President Bush must be jailed. For what? For agreeing to allow water boarding of terrorists while he was president (a total of three men were water boarded, for the record. Read about them here .)  The possibility of arrest was apparently serious enough that President Bush cancelled his trip to Switzerland to speak at a fundraiser.

I have studied World War II history quite a bit, and my father fought from Normandy all the way to Germany to the end of the war (I guess he decided not to remain neutral). I don’t recall reading about demonstrations against Hitler, or the Holocaust, or the invasions of Poland, or Czechoslovakia, or Austria, or Russia, or England, or anywhere else. Sure, there were some newspapers that condemned Nazism. But the government was thought by many to be too pro-Nazi. But now? The Swiss are outraged by President Bush and his endorsement of “torture.” Not only the Swiss, who were planning large demonstrations, with each demonstrator armed with a shoe to throw at Bush, but also by The (US) Center for Constitutional Rights. You can read ABC’s story here. A Swiss Justice Department spokesman said that after it’s “initial assessment of international law”, Bush would have enjoyed immunity from the criminal prosecution. Hmmmmm. “Initial assessment.” Those are words we in the practice of law call non-binding. And based on the “final assessment”, once he arrives, it turns out…he can be prosecuted! Who knew! Predictably, Bush cancelled his trip.

What is this Center for Constitutional Rights? They are the self-appointed human rights activists (attorneys) who blaze with righteous indignation for their causes. This cause, against President Bush, has been joined by sixty other “Human Rights” organizations to put Bush in prison for accepting the advice of his legal advisors. You can see how proud they are on their website here.  Or read the op/ed on CNN yesterday, by Michael Ratner, the president of the Center for Constitutional Rights here.  He states clearly that he believes Bush violated the Convention Against Torture and therefore international law (the treaty though simply requires that each country pass laws against torture under their own jurisdiction, it is not self executing) by authorizing water boarding, among other things. The “other things” are not identified, so let’s deal with water boarding.

One thing I have experienced that Mr. Ratner probably has not, is water boarding. I was water boarded as part of my training in the Navy to prepare me in case I was captured as a Naval Flight Officer in F-14s. If water boarding someone is torture, then perhaps we should go get President Carter who was president at the time. I must say that enduring water boarding is one of the most difficult episodes of my life. But I don’t have any permanent damage, or scars, or disabilities from it. It was very scary, and helped me appreciate that if someone water boarded me and meant it, I would probably tell them what they wanted to know. If you think you’re tough, this helps you understand that you’re not as tough as you think.

So if Carter isn’t to be charged, maybe there’s more to it than water boarding=torture. As you can see from Ratner’s op/ed, the entire piece is based on the assumption or conclusion that water boarding is in fact torture under any reasonable understanding or more importantly legal definitions.

So what is torture? The Convention Against Torture defines torture as severe pain or suffering inflicted intentionally on a person to extract information, a confession etc. So is “severe pain or suffering” clear? Is it obvious to everyone what that is? What is the definition under US law? What law was enacted under the US obligation under the Convention Against Torture? It is 18 USC Section 2340. Read it for yourself:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

So as you can see, the US law diverts a little from the convention language. They seem to be after those who inflict severe pain and suffering for its own sake. Notice they did not adopt the convention language that requires that the conduct be to extract information or confessions. It says torture is when you specifically intend to inflict severe pain or suffering (which is then defined). When the severe pain or suffering is your intent.

So is it so obvious, so clear, so outrageous, that water boarding should have been included in this definition?   I believe  it isn’t at all obvious that water boarding falls within the definition of the US law against torture (the only one binding on US citizens).  Then where are the edges of the definition?  It’s quite easy to get people to say the are “against torture.”  Who is going to say that he’s in favor of it?  But what is meant by the speaker when asking the question? Is sleep deprivation the intentional infliction of severe mental or phisycal pain? Is an insult? Is lying to them? Is water boarding?

I have spoken to numerous groups since I started exploring this issue in my novels. I dealt with it most directly in Secret Justice, where  a Navy SEAL uses water boarding to find and capture a bin Laden type character (written before anyone had publicly heard of water boarding). And I explored it most recently in my novel from 2010 (due out in paperback in May 2011), Falcon Seven, which finds two Navy flyers under the jurisdiction of the International Criminal Court for “war crimes.” A court set up by treaty—which the US has not ratified—declaring war crimes a matter of international interest and subject to prosecution in Holland. We say they have no jurisdiction over US citizens, they disagree. Much like European justices believe they have jurisdiction over Bush for torture when he leaves the territory of the United States.  He has also been charged with war crimes by a self important Spanish judge.

When I would discuss the ethics of torture, and of water boarding in particular, the overwhelming majority supported its use on people like Khalid Sheikh-Mohammed, one of the three water boarded, and from whom a wealth of information (that saved lives) was extracted.  ABC News said it took him about two minutes to start talking.  (That sounds about right to me.  Two minutes would feel like an eternity.)  You can read about it here .

The use of human rights laws to hamstring American policy and the conduct of the war on terror is growing more and more sophisticated. It is as effective as if it were an independent arm of al Qaeda. It is what is now called Lawfare. The use of human rights laws to challenge the acts of western democracies (notice how the Syrias of the world never seem to face these charges, a country that routinely tortures its citizens). (To read more about the sophisticated use of Lawfare, read this site at the Lawfare Project.)

Charging Bush with violating the statute against torture would be like charging Ratner, the president of the Center for Constitutional Rights, with treason. It is not self-defining. Some might be persuaded that his conduct has satisfied the definition of Treason under Article III of the United States Constitution, by “adhering to the enemy, or giving them aid and comfort.” Perhaps there is a sympathetic judge somewhere who could be persuaded that attacking a former president with 2500 pages of legalese overseas and allegations of “torture” when water boarding is nowhere defined as such, is “giving the enemy aid and comfort,” if not directly supporting the enemy’s war effort through the use of the legal system. The CCR should be careful in pushing for prosecutions under vague definitions. They might get what they wish for.

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