Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes "complicity" or "participation" in torture, and the same principle governs violations of Common Article 3.
It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999-in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes-and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile's loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. "That is very stupid," said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country-one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.
"It's a matter of time," the judge observed. "These things take time." As I gathered my papers, he looked up and said, "And then something unexpected happens, when one of these lawyers travels to the wrong place."
Given that President Bush, once he leaves office on January 20, 2009, will no longer have the diplomatic immunity conferred upon heads of state, or the Constitutional protection against indictment by domestic prosecutors, it makes sense that he would be looking for a safe haven from the long arm of the law.
After all, the guy is guilty of a huge laundry list of international crimes, from the Crime Against Peace and Conspiracy against Peace in the UN Charter, to Geneva Convention violations such as approval of torture of prisoners, collective punishment of civilians, the killing of children and child soldiers, the failure to protect occupied citizens, the use of banned weapons, etc., etc., and also of domestic crimes, ranging from political use of government employees, conspiracy, treason, lying to federal officials, defrauding Congress, etc. . .
Only trouble is, Paraguay may not be such a safe haven for long.
Last month, a former Roman Catholic Bishop with leftist, populist tendencies, Fernando Lugo, surprised almost everyone in Paraguay, and no doubt President Bush, by winning the national presidential election, ousting the Colorado Party for the first time in 61 years. There is talk that among other things, Lugo is thinking of returning Paraguay to the community of nations, by signing some of those extradition agreements.
If he does that, Bush may be stuck having to hide behind his rump squad of Secret Service agents down at the Crawford Ranch, hoping they can keep the process servers from Brattleboro and Marlboro, VT, with their war crimes arrest warrants, at bay.