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In his memoir, former U.S. president George W. Bush admits that when he was asked if waterboarding should be used against a detainee in U.S. custody, he replied “Damn right.” Despite the admission that he authorized mistreatment of detainees, Bush has not been investigated or held accountable for his actions in the United States — or by any judicial body elsewhere. Bush has enjoyed global impunity for his role in the torture of detainees held in Guantánamo, Abu Ghraib, Bagram and secret CIA “black sites.”
On September 29, 2011, CCIJ and the US-based Center for Constitutional Rights sent a letter and draft indictment to the Attorney General of Canada calling for the investigation and prosecution of George Bush when he visited Surrey, BC on October 20, 2011. Despite a follow-up letter, they received no response.
As a result, CCIJ Legal Director Matt Eisenbrandt initiated a private prosecution in Provincial Court in Surrey against the former president on behalf of four individuals who allege they were tortured during Bush’s tenure. The four men took this step after the lack of action by the Attorney General. Over 50 human rights groups and prominent individuals signed a letter in support of the effort.
The four men, Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz, each endured years of inhumane treatment including beatings, chaining to cell walls, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water-deprivation, exposure to extreme temperatures, sensory overload and deprivation, and other horrific and illegal treatment while in U.S. custody at military bases in Afghanistan and/or at the detention facility at Guantánamo Bay. While three of the men have since been released without ever facing charges, Hassan bin Attash still remains in detention at Guantánamo Bay, though he likewise has not been formally charged with any wrongdoing.
Within only hours, CCIJ was notified that the Attorney General of British Columbia had already intervened in the case and stayed the proceedings, effectively shutting down the prosecution. Several days later, CCIJ received a letter confirming the Attorney General’s intervention. CCIJ and the Center for Constitutional Rights released a statement condemning the politically motivated action.
Only later – over two weeks after Mr. Bush’s visit – did CCIJ receive a two-sentence letter from the federal Department of Justice, signed by the manager of the Correspondence Unit, acknowledging only that our correspondence had been received.
Committee against Torture
On April 20, 2012, CCIJ and CCR filed a report with the United Nations Committee against Torture, the body charged with interpreting and applying the Convention against Torture. The submission detailed the ways in which Canada violated its obligations under the Convention by failing to prosecute Mr. Bush. The report also lays out the ways in which the Attorney General of British Columbia thwarted the private prosecution. CCIJ and CCR called for the Committee to reprimand Canada for its actions and inaction in the Bush case.
The Committee examined Canada on May 21 and 22, 2012.The Canadian Press reported that Canadian officials expected to be “grilled” about the refusal to prosecute Mr. Bush. On the issue of the visits by Mr. Bush and Dick Cheney, talking points for Canada’s delegation mentioned nothing about Canada’s obligations under the Torture Convention but rather pointed to the complexities of torture prosecutions and the firmly entrenched principle of prosecutorial discretion in Canada. The delegation was also told to make clear that “[t]o ensure the most efficient use of resources, Canada prioritizes suspects who reside in Canada.” “If pressed,” the talking points said, the Canadian delegation should say they cannot comment on specific criminal complaints.
In its Concluding Observations, although not mentioning the Bush case specifically, the Committee recommended that Canada “take all necessary measures with a view to ensuring the exercise of the universal jurisdiction over persons responsible for acts of torture, including foreign perpetrators who are temporarily present in Canada.” CCIJ highlighted those comments in a report to the Department of Canadian Heritage.
On November 14, 2012, CCIJ and CCR, on behalf of the four torture survivors, filed a complaint against Canada with the Committee against Torture. The complaint asks the Committee to declare that Canada violated its legal obligations under the Convention against Torture when officials refused to prosecute Mr. Bush and intervened to terminate the private prosecution. In filing the complaint, the survivors are seeking answers as to why their efforts to pursue justice were thwarted in Canada and calling for improvements in how Canada handles cases in which alleged torturers are present on Canadian soil. The complaint was accompanied by a letter from CCIJ and CCR, several annexes of documentation and a press release.
In October 2013, Canada filed its response to the complaint. In the response, the government admitted that “the RCMP concluded that they neither possessed key evidentiary elements, nor were they likely to obtain them, and so did not launch an investigation.” A primary reason for the failure to investigate was, as the Canadian government explained, “The evidence necessary to prove his level of involvement, if any, in the alleged torture of the authors or other alleged victims of torture by the U.S. government resides, for the most part, within the very centre of the U.S. administration and with present and former U.S. officials residing in the United States.” Canada cited a speech by U.S. Attorney General Eric Holder for the conclusion that the “U.S. administration under President Obama made it clear, as of 2009, that it would not pursue prosecution of members of the former administration.” As such, there was an “absence of a reasonable expectation of assistance from the U.S.”
The receipt of the Canadian response coincided with a CCIJ-CCR op-ed in the Toronto Star on the occasion of Dick Cheney’s visit to Toronto.
In December 2013, CCIJ and CCR, on behalf of the survivors, filed a reply to Canada’s submissions and argued that the RCMP’s admitted failure to investigate – and Canada’s weak justification that it was not in possession of sufficient evidence to arrest, investigate or try Mr. Bush – proved that Canada had violated its obligations under the Convention against Torture.
On May 12, 2014, in response to George W. Bush’s arrival in Toronto for a fundraiser with Bill Clinton, CCIJ and CCR issued the following statement:
“By allowing Bush to enter its territory, Canada is undermining the UN Convention Against Torture, which was adopted to ensure there are no safe havens for torturers. Canada is already under review by a UN committee for failing to take action when Bush visited in 2011. During that visit, four men brought forward claims of torture against Bush for the treatment they endured while detained at Guantánamo and in Afghanistan. Canadian law criminalizes torture wherever it occurs and Canada’s obligations under the Convention Against Torture make it clear that if a known torturer sets foot in the country, the government must investigate and prosecute if appropriate. Evidence of Bush’s role in authorizing torture in Abu Ghraib, Bagram, Guantánamo, and CIA black sites has been in the public record for years and Bush himself has admitted to his involvement. Canada is flouting the law by turning a blind eye to Bush’s visit.”
CCR and CCIJ also submitted a letter to the UN Committee on May 8, 2014 informing the Committee about the visit and requesting it to take any appropriate action. The Committee did not take action other than to transmit our letter to Canada.
Canada submitted further comments to the Committee in April 2014 to which CCIJ and CCR responded in July 2014. We are awaiting a decision from the Committee.
Attempted Prosecution in Canada
Read more at CCR’s casepage on George W. Bush
Committee against Torture