So Phillip Sands, the author of torture team, is being interviewed on NPR as we speak about the use of harsh interrogation techniques at Guantanamo. Now I’m seriously bothered but many of the revelations about Guantanamo, particularly the possibility that we used harsh interrogation methods when we had strong reason to believe they wouldn’t be effective and that we kept people locked up despite strong reason to believe they posed no threat nor had committed no crime just to avoid looking foolish. Certainly the indefinite secret detention of people and the use of techniques like water boarding violates the spirit of both the US constitution and international human rights treaties whether or not they constitute technical violations. However, the suggestion that senior officials in the Bush administration, including Bush himself, face a real risk of being subject to criminal penalties by foreign nations is just absurd and actually encourages human rights violations. Moreover, the notion that merely suggesting that US law doesn’t bar certain kinds of harsh interrogation techniques is itself a war crime is flat out absurd.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.